California Law Review
Volume 84 | Issue 2
Article 1
March 1996
The Continuation of Politics by Other Means: The
Original Understanding of War Powers
John C. Yoo
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Recommended Citation
John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167 (1996).
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California Law Review
VOL. 84
MARCH
1996
No. 2
Copyright © 1996 by California Law Review, Inc.
The Continuation of Politics by Other
Means: The Original Understanding
of War Powers
John C. Yoot
TABLE OF CONTENTS
Introduction .....................................................................................
I. War Powers: Allocation, Practice, and Criticism ...........................
A. The Constitutional Text........................................................
B. The Constitution in Practice .................................................
1. Congress and the President .............................................
2. The Courts and the War Powers ......................................
3. The Persian Gulf War .....................................................
170
175
175
176
176
182
186
Copyright © 1996 California Law Review, Inc.
Acting Professor of Law, University of California at Berkeley (Boalt Hall) (on leave);
t
General Counsel, Committee on the Judiciary, United States Senate; J.D., 1992, Yale Law School;
A.B., 1989, Harvard College. I would like to thank Larry Block, David Caron, Bill Eskridge, Lou
Fisher, Jack Goldsmith, Sandy Kadish, David Lieberman, Greg Mark, John McGinnis, Paul Mishkin,
Sai Prakash, Thomas Schwartz, Peter Spiro, Jane Stromseth, and Dwight Tannenbaum for their
comments on this Article. I also have profited from conversations with Akhil Amar, Jesse Choper,
Willy Fletcher, Bob Kagan, Harold Koh, Paul Matulic, Laurent Mayali, Frank Newman, Nelson
Polsby, Robert Post, Dan Rodriguez, Harry Scheiber, Tom Schwartz, Martin Shapiro, Jan Vetter, and
Jeremy Waldron. Eric Lai and David Kaye provided superb research assistance. The University of
California at Berkeley's Committee on Research and the Boalt Hall Fund supported this study. This
Article also benefitted from comments received during its presentation at the 1994 meeting of the
Society for Historians of American Foreign Relations. I would like to thank Tom Schwartz for
inviting me to participate in the SHAFR meeting. As always, I would like to thank Elsa Arnett and
Chris Yoo for their invaluable support. I also would like to thank Judge and Ambassador Laurence
Silberman for his advice and for sharing his experiences on diplomacy and military affairs. The
views expressed in this Article do not represent the views of the Committee of the Judiciary of the
United States Senate.
CALIFORNIA LAW REVIEW
[Vol. 84:167
C. The Academic Critique: The President Against the
Professors ............................................................................
188
1. Original Intent Betrayed .................................................
189
2. The Separation of Powers Betrayed ................................ 192
3. Judicial Abdication ........................................................
194
II. The British Legacy .....................................................................
196
A. English Constitutionalism and War .......................................
197
1. The Allocation of War Powers in the English
Constitution and Eighteenth-Century
Political Thought ...........................................................
198
2. The Declare-War Power in the English Constitution
and Eighteenth-Century Political Thought ..................... 204
3. The Lessons of British History: The
Sinews of War ................................................................
208
4. The Lessons of British History: The Declaration
of W ar............................................................................
214
5. Summary of the British Model ....................................... 217
III. W ar and Early America ..............................................................
218
A. Colonial Government ...........................................................
219
B. The W ar Powers in the New State Constitutions ..................... 221
1. Early Efforts to Rein in Executive Power ........................ 222
2. Executive Power Reborn: New York,
Massachusetts, and New Hampshire ................................ 228
3. A Path Not Taken ..........................................................
234
C. The Articles of Confederation and the Prelude
to Constitutionalism .............................................................
235
IV. The New Constitution .................................................................
241
A. The Constitutional Text in Context ....................................... 242
1. The Declare War Clause .................................................
242
2. Other Constitutional War Powers Provisions .................... 250
a. Other Formal Congressional Powers ......................... 250
b. The President's Powers ............................................
252
B. The Constitutional Convention and the Allocation of
War Powers ...........................................................
256
1. Early Proposals: The Virginia Plan and Beyond ............. 257
2. Making and Declaring War: The Debate of
August 17 ......................................................................
260
3. Peace and the Presidency ...............................................
265
C. The State Ratification Debates ..............................................
269
1. The Antifederalist Attack ...............................................
270
2. The Federalist Responses ................................................
276
1996]
THE CONTINUATION OFPOLITICS
3. The Battle Joined: Ratification Arguments and
the Centrality of Funding ...............................................
4. W ar Powers and Judicial Abstention ...............................
5. The New Constitution in Practice ....................................
Conclusions .....................................................................................
A. Modem W ar Revisited ..........................................................
B. W ar and Republicanism ........................................................
169
279
287
290
295
296
302
[Vol. 84:167
CALIFORNIA LAW REVIEW
The Continuation of Politics by
Other Means: The Original
Understanding of War Powers
John C. Yoo
In recent years, legal commentators have sharply criticized executive initiative in the war-making process. This Article examines the historicaland legal background of the war powers in the Anglo-American
world of the seventeenth and eighteenth centuries. The author argues
that the war powers framework created by the Framers differs sharply
from that envisioned by modern scholars. After exploring the
Constitutional text, the political and legal context within which the
Framerslived, experiences with British political history and state constitutions, and the arguments made during the ratification debates, the
author concludes that the Framers created a framework designed to
encourage presidential initiative in war. Congress was given a role in
war-making decisions not by the Declare War Clause, but by its powers
overfunding and impeachment. The courts were to have no role at all.
Professor Yoo suggests that the Constitution did not inadvertently
exclude the judiciary. Instead, the Framers understood the Constitution
as giving the two political branches weapons to struggle for influence
over the war-making process-rendering judicial supervision unnecessary. The Article concludes that because the Framersfailed to specify
an exact relationshipbetween the Presidentand Congress in the area of
war, precise procedures may evolve over time within the constitutional
framework.
INTRODUCTION
Since the end of the Cold War, our nation has turned to the use of
force in its foreign relations more frequently than some might have
hoped. The increase in military interventions-in Lebanon, Grenada,
the Persian Gulf, Panama, Kuwait, Somalia, Haiti, and now Bosnia-has
been accompanied by increasing academic criticism of the way in which
the federal government makes war. This criticism, which represents a
1.
See generally JOHN
VIETNAM
AND
MICHAEL
J.
TIONALISM,
H. ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL
ITS AFTERMATH
GLENNON,
DEMOCRACY,
(1993); Louis
CONSTITUTIONAL
AND
FOREIGN
FISHER,
DIPLOMACY
AFFAIRS
(1990);
PRESIDENTIAL
(1990);
Louis
HAROLD
H.
WAR
HENKIN,
KOH,
SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR
LESSONS OF
POWER
(1995);
CONSTITU-
THE NATIONAL
(1990);
FRANCIS
D.
19961
THE CONTINUATION OFPOLITICS
diversity of political and intellectual positions, is striking both for its
uniformity of opinion and its harshness of tone.2 Critics of the current
war powers landscape accuse Presidents from Harry Truman to George
Bush of waging "unconstitutional" wars, portray Congress as shirking
its constitutional responsibilities, and point to the "powerful whiff of
hypocrisy" found in the judiciary's hands-off attitude.
According to these scholars, the post-World War II era has wit-
nessed nothing less than "the disappearance of the separation of
powers, the system of checks and balances, as it applies to decisions to
go to war." 4 Arguing that the Framers intended Congress to have
exclusive control over the decision to go to war, they interpret the
Declare War Clause5 as a separation of powers provision that not only
empowers Congress, but also limits executive abilities to make war.6
Under this approach, in order to wage war, the President must receive a
declaration of war or its "functional equivalent" from Congress.
Should the President overstep these constitutional boundaries, the
federal courts must intervene to right the balance by declaring the war
unconstitutional or even by enjoining the President's actions.
To CHAIN THE DOG OF WAR: THE WAR POWER OF CONGRESS IN HISTORY AND
LAW (1986); J. Gregory Sidak, To Declare War, 41 DuKE LJ. 27 (1991); Jane E. Stromseth,
Rethinking War Powers: Congress, the President,and the United Nations, 81 GEo. L.J. 597 (1993).
2. I am referring here only to the most recent works on war powers. See supra note 1. To be
sure, there is a much older, more diverse body of scholarship on war powers, the vast majority of
which seems to be in agreement with the more recent work. See generally THOMAS F. EAGLETON,
WAR AND PRESIDENTIAL POWER: A CHRONICLE OF CONGRESSIONAL SURRENDER (1974); FOREIGN
AFFAIRS AND THE U.S. CONSTITUTION (Louis Henkin et al.eds., 1990); EDWARD KEYNES,
UNDECLARED WAR: TWILIGHT ZONE OF CONSTITUTIONAL POWER (1982); W. TAYLOR REVELEY
WORMUTH ET AL.,
III,WAR POWERS
BRANCH?
WYNEN
(1981);
THOMAS
OF THE PRESIDENT AND
CONGRESS: WHO HOLDS THE ARROWS AND
ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY
& AJ.
THOMAS,
JR.,
THE
WAR-MAKING
CONSTITUTIONAL AND INTERNATIONAL LAW ASPECTS
POWERS
OF
(1973);
OLIVE
ANN VAN
THE PRESIDENT:
(1982); William Van Alstyne, Congress, the
President, and the Power to Declare War: A Requiem for Vietnam, 121 U. PA. L REV. 1 (1972);
Arthur Bestor, Separationof Powers in the Domain of Foreign Affairs: The Intent of the Constitution
Historically Examined, 5 STON HALL L REV. 527 (1974); Alexander M. Bickel, Congress, the
President and the Power to Wage War, 48 Cm.-KENT L REV. 131 (1971); Gerhard Casper,
ConstitutionalConstraintson the Conductof Foreignand Defense Policy: A Nonjudicial Model, 43 U.
Cm. L REv. 463 (1976); Leonard G. Ratner, The Coordinated Warmaking Power-Legislative,
Executive, and JudicialRoles, 44 S. CAL. L. REV. 461 (1971).
Of course, the issue also arises in the numerous articles and comments on the War Powers
Resolution. See, e.g., Stephen L. Carter, The Constitutionalityof the War Powers Resolution, 70 VA. L
REV. 101 (1984); John H. Ely, Suppose Congress Wanted a War Powers Act That Worked, 88 COLUM.
L REV. 1379 (1988); Eugene V. Rostow, "Once More Unto the Breach:" The War Powers Resolution
Revisited, 21 VAL. U. L REV. 1 (1986).
3. THOMAS M. FRANCK, POLITICAL QUESTIONS/JUDICIAL ANSWERS: DOES THE RULE OF
LAW APPLY TO FOREIGN AFFAIRS? 30 (1992). See also sources cited supra notes 1-2.
4. ELY, supranote 1, at ix.
5. "The Congress shall have Power ...To declare War." U.S. CONST. art. I, § 8, cI. 11.
6. See, e.g, GLENNON, supranote 1, at 17.
CALIFORNIA LAW REVIEW
[Vol. 84:167
Historical practice, however, has contrasted starkly with these constitutional arguments. Congress has issued a declaration of war only
five times in its history. The post-1945 era has borne witness to a litany
of undeclared wars and an even longer list of less significant uses of the
military. The President has initiated conflict, often without any formal
signs of congressional approval, and certainly without a declaration of
war.7 With few exceptions, the federal courts either have refused to hear
constitutional challenges to these wars,8 or have upheld the propriety of
the executive action. 9
This divergence of academic theory and political practice has led to
an unusual arrangement of ideology and constitutional interpretation.
"Liberals" who opposed unilateral executive authority have turned to
the Framers' intent for support, arguing for a Constitution with a
meaning fixed by the history of its drafting.' 0 "Conservatives" who
favored enhanced presidential war powers have invoked the lessons of
the recent past and the nation's post-ratification history to buttress a
vision of a Constitution that has adapted to a dangerous world."
This Article argues, in a sense, that both sides are wrong. It agrees
with the methodology employed by the critics of executive dominance
over war powers but disagrees with their conclusions. When interpreting
the text of the Constitution, we should seek to determine the meaning of
its terms as understood by those who adopted its provisions. As the
majority of scholars in the war powers area recognize, this is the best
starting point to interpret the Constitution. As a written document, the
Constitution's meaning does not change from the meaning it held for
its drafters. Otherwise the Constitution's meaning would be as incon2
stant as, to paraphrase Horace, the times, or the mores.'
Seeking the original understanding of the war powers requires us to
turn to untapped sources. Americans of the late eighteenth century
would have defined terms in the Constitution-such as "Declare War"
and "Commander in Chief'-in the context of how Great Britain, the
colonies, and the states had gone to war in the recent past. Further, the
7. See infra notes 41-69 and accompanying text.
8. See, e.g., DaCosta v. Laird, 405 U.S. 979 (1972) (denial of certiorari); Massachusetts v.
Laird, 400 U.S. 886 (1970) (denial of motion to file complaint); Morm v. McNamara, 389 U.S. 934
(1967) (denial of certiorari); Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973).
9. See, e.g., Orlando v. Laird, 443 F.2d 1039 (2d Cir.), cert. denied,404 U.S. 869 (1971).
10. See, e.g.,ELY,supra note 1,at 3-11;FISHER, supra note 1,at 1-12;GLENNON, supra note 1,
at 80-84; KoH, supra note 1,at 74-84.
11. See, e.g., JOHN LEHMAN, MAKING WAR: THE 200-YEAR-OLD BATTLE BETWEEN THE
PRESIDENT AND CONGRESS OVER How AMERICA GOES TO WAR (1992); Robert H. Bork, Address,
Erosionof the President'sPower in ForeignAffairs, 68 WASH. U. LQ. 693, 695-701 (1990); Eugene
V. Rostow, Great Cases Make Bad Law: The War Powers Act, 50 TEx. L REv. 833 (1972).
12. See McIntyre v. Ohio Elections Comm'n, 115 S.Ct. 1511, 1525, 1530 (1995) (Thomas, J.,
concurring); Antonin Scalia, Originalism:.heLesser Evil, 57 U. CIN. L RaV.849 (1989).
1996]
THE CONTINUATION OFPOLITICS
Framers would have understood the terms of the proposed federal
Constitution by comparing them to the most significant public legal
documents of the day: the state constitutions. As we will see, this was a
common approach to interpreting the Constitution during the ratification debates. Finally, we will examine the records of the Constitutional
Convention, the state ratifying conventions, and the public debates
waged in the press, not for signs of legislative intent per se, but for indications of how Americans of the late eighteenth century understood the
legal framework of war powers.
Most works have focused on the short discussion of the Declare
War Clause at the Constitutional Convention and a few selected com3 Others
ments from The Federalist.'
rely heavily on post-ratification
evidence from the first quarter-century of the nation's youth to fill in
the Constitution's perceived ambiguities. 4 But these approaches fail to
recognize that the Framers neither acted in a historical vacuum, nor
wrote on a constitutional tabula rasa.5 Nor can we take as dispositive
private comments that were not made known to the state ratifying conventions or to the people. This Article will examine the ratifying debates, not to show that the Framers held unchanging, clear positions, but
to show that the intellectual give-and-take of the public exchanges on
both. sides began from a shared understanding of the way war powers
had functioned in the Anglo-American past. 6 Finding this shared understanding, construed in relation to its proper legal context, is the best
way to interpret the Constitution's allocation of war powers.
This Article focuses its analysis of the separation of powers on the
history of British, colonial, and early state politics leading up to the ratification of the Constitution. It concludes that when the Framers adopted
the Constitution, they were reacting as much as they were innovating,
tinkering with existing mechanisms as much as they were breaking with
tradition. The historical evidence reveals a Constitution that does not
13. See, e.g., ELY, supra note 1, at 3-5; see generally Raoul Berger, War-Making by the
President,121 U. PA. L REV. 29 (1972).
14. See, e.g., KOH, supra note 1, at 70-71, 74-84; see generally ABRAHAM D. SOFAER, WAR,
FOREIGN AFFAIRS AND CONSTITUTIONAL POWER: THE ORIGINS (1976). Sofaer, for example,
devotes more than thtee-quarters of his book to an examination of post-ratification practice. The
brief history of the early post-ratification period provided in this Article also draws into question the
conclusions of these scholars. See infra notes 559-587 and accompanying text.
15. See, e.g., Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary
Executive, PluralJudiciary,105 HARV. L. REV. 1153 (1992); Abner S. Greene, Checks and Balances
in an Era of PresidentialLawmaking, 61 U. CII. L. REV. 123 (1994); Lawrence Lessig & Cass R.
Sunstein, The Presidentand the Administration, 94 COLUM. L REV. 1 (1994).
16. Tracing this evolution has been facilitated by the recent publication of the Library of
America's two volume THE DEBATE ON THE CONSTITUTION (Bernard Bailyn ed., 1993). Although
the materials in the set are available in other well-known collections, Bailyn has arranged the
speeches, newspaper articles, and papers to show how the Federalists and Antifederalists responded
to, and changed their ideas in reaction to, one another.
CALIFORNIA LAW REVIEW
[Vol. 84:167
prescribe one exclusive method for going to war. A war may be constitutional, even if no declaration of war has issued or if the President has
acted unilaterally, so long as one branch has not usurped the textually
enumerated power of another. The Constitution establishes a warmaking process that can vary with the circumstances and with the relative political power of the President and Congress. It assumes that the
political branches will exercise their constitutional powers sometimes cooperatively and sometimes antagonistically. Moreover, the Constitution
did not inadvertently allocate all war powers to the two political branches; rather, the nature of the mutable process it created made judicial
supervision unworkable and undesirable.
The Framers established a system which was designed to encourage
presidential initiative in war, but which granted Congress an ultimate
check on executive actions. Congress could express its opposition to
executive war decisions only by exercising its powers over funding and
impeachment. The Framers established this system because they were
not excessively worried by the prospect of unilateral executive action.
The President was seen as the protector and representative of the People.
In contrast, the Framers expressed a deep concern regarding the damage
that Congress, and the interest groups that could dominate it, might
cause in the delicate areas of war and foreign policy.
Part I of this Article establishes the necessary background for our
study. Section A sets forth the constitutional text that governs the
allocation of war powers. Section B describes the manner in which the
three branches have exercised these powers throughout our nation's history. Section C reviews the contemporary scholarship on the war powers. Part II examines the Anglo-American understanding of war and of
the separation of powers during the seventeenth and eighteenth centuries. Part I reviews how these ideas were transplanted to American
soil. Section A describes the colonists' experience, and Section B discusses the revolutionaries' efforts in designing their state constitutions.
Section C reviews the allocation of war powers in the Articles of
Confederation. Part IV focuses on the events and ideas surrounding the
drafting and ratification of the Constitution. Section A places the text
of the Constitution's war provisions in the political and legal context
within which eighteenth-century Americans would have understood
them. Section B turns to the Constitutional Convention and links the
debates over the Declare War Clause with the discussions concerning
peacemaking. Section C discusses the arguments made during the
ratification debates, both public and private, and shows how the
Federalists invoked Congress' authority over appropriations to answer
Antifederalist claims that the President was a king-in-the-making.
1996]
THE CONTINUATION OFPOLITICS
The Conclusion returns to the debate between liberals and conservatives over the war powers. This Article's analysis ultimately shows
why both the original understanding and subsequent practice are valuable for understanding our constitutional allocation of war powers.
Original understanding analysis illuminates the general framework that
the Framers erected and what their expectations were. Because the
Constitution fails to specify an exact relationship between the President
and Congress in the area of war, examination of post-ratification practice confirms our understanding of the allocation of war powers between
the branches. Ultimately, however, it is the constitutional framework
that endures, while the exact processes of going to war within that
framework may change over time.
I
WAR POWERS: ALLOCATION, PRACTICE, AND CRITICISM
This Part describes the current war powers debate. Section A reviews the relevant provisions of the Constitution. Section B examines
how, in the absence of clear constitutional commands, the executive and
legislative branches have struggled for control over war during the past
two centuries, with the post-World War II era witnessing increased presidential dominance countered by half-hearted congressional attempts at
participation. Section B also examines how the federal courts have declined to intervene into inter-branch conflicts over presidential warmaking. Section C examines the scholarly critique of executive dominance in war and the proposals for judicial solutions. Later Parts of this
Article make clear that both this critique and the proposed solutions are
incompatible with the original understanding of war powers.
A. The ConstitutionalText
As with all constitutional questions, an analysis of war powers
should begin with the constitutional text, which allocates war-making
authority not to a single branch of government, but to both the executive and legislative departments. Article I gives Congress the power to
"declare War, grant Letters of Marque and Reprisal, and make Rules
concerning Captures on Land and Water."' 7 Congress also has the authority to "raise and support Armies," to "provide and maintain a
Navy," 9 to "make Rules for the Government and Regulation of the
land and naval Forces,"' to "provide for calling forth the Militia to
execute the Laws of the Union, suppress Insurrections and repel
17.
18.
19.
20.
U.S. CoNsr. art. , § 8, cl.
11.
Id. dl.12.
Id. cl.13.
Id. cl.14.
CALIFORNIA LAW REVIEW
[Vol. 84:167
Invasions,"2 and to "provide for organizing, arming, and disciplining,
the Militia."' Congress also possesses other powers related to foreign
affairs, including the power to regulate international commerce," to establish immigration rules,2' to pass laws punishing piracy and felonies
committed on the high seas,' and to give its advice and consent to the
26
appointment of ambassadors and the making of treaties.
Compared to this impressive list, the powers of the President at first
glance appear somewhat paltry. Article II states that "[t]he President
shall be Commander in Chief of the Army and Navy of the United
States, and of the Militia of the several States, when called into the actual
Service of the United States."'27 The President's other enumerated powers include the authority to receive ambassadors 28 and, with the advice
and consent of the Senate, to make treaties and appoint ambassadors. 29
Finally, Article II vests "the executive Power"' and the duty to execute
the laws in the President.3'
The judiciary's powers are limited in the area of war powers, although the federal courts do have jurisdiction over cases that may relate
to foreign affairs. Article m vests the judicial power of the United
States in the federal courts,3 2 and gives them jurisdiction over cases arising under the Constitution, treaties, and other laws of the United States.33
Other grants of jurisdiction include the authority to hear cases involving
ambassadors and other foreign officials, maritime or admiralty law, or
treason against the United States, and to hear diversity suits involving
foreign states or citizens.' No provision explicitly authorizes the federal courts to intervene directly in war powers questions.
B. The Constitutionin Practice
1.
Congress and the President
The Constitution's division of authority establishes a framework
that has evolved into the operational system of war powers we have today. The experiences of World Wars I and II might lead one to assume
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
Id. cl. 15.
Id. cl. 16.
Id. Cl. 3.
Id. cl. 4.
Id. cl. 10.
Id. art II, § 2, cl. 2.
Id. cl. 1.
Id. § 3.
Id. § 2, el. 2.
Id. § 1,cl. 1.
Id. § 3.
Id. art. III, § 1.
Id. § 2, . 1.
Id.
19961
THE CONTINUATION OFPOLITICS
that because Congress declared war in those two wars, the Constitution
requires a declaration to trigger the President's powers as Commander
in Chief.35 However, formal declarations of war have constituted the
exception rather than the rule in American history. The United States
has declared war only five times: during the War of 1812, the
Mexican-American War of 1848, the Spanish-American War of 1898,
and World Wars 1 (1914) and II (1941). Yet, the United States has committed military forces into hostilities abroad at least 125 times in the
Constitution's 207-year history.36 In some cases, such as the Quasi-War
with France in 1798, the Vietnam War, and the Persian Gulf War,
Congress passed statutes or resolutions that authorized the President to
engage in military operations, but did not label them declarations of
war.37 In other cases, most notably in the Korean War, Congress either
never formally approved the intervention or chose only to appropriate
funds for the President's actions.3"
Although declarations of war have been rare, Congress has never
been wholly absent from the war powers equation.
For much of the
nineteenth and early twentieth centuries, Congress assented to presidential uses of force abroad. 9 Interventions undertaken without congres-
sional approval were, for the most part, small-scale actions to protect
American property, citizens, or honor abroad that had little risk of significant combat.' Larger-scale actions required the President to seek
congressional approval for expanded military forces.41 Given this rela35.
36.
See, e.g., Sidak, supranote 1, at 73-75.
See, e.g., OFFICE OF THE LEGAL ADVISOR, U.S. DEP'T OF STATE, THE LEGALITY OF
UNITED STATES PARTICIPATION IN THE DEFENSE OF VIET-NAM (1966), reprinted in 1 THE
VIETNAM WAR AND INTERNATIONAL LAW 583, 597 (Richard A. Falk ed., 1968) [hereinafter
DEFENSE OF VIET-NAM]; CONGRESSIONAL
RESEARCH
SERVICE,
INSTANCES OF USE OF UNITED
STATES ARMED FORCES ABROAD, 1798-1989 (Ellen C. Collier ed., Dec. 4, 1989), reprinted in
THOMAS M. FRANCK
& MICHAEL J. GLENNON, FOREIGN RELATIONS AND
NATIONAL SECURITY
LAW 650 (2d ed. 1993). The number of hostilities depends, of course, on the method of counting, and
estimates range as high as 215. Ironically, the State Department's estimate (125) comes in far lower
than the Congressional Research Service's count (215).
37. Act of May 28, 1798, ch. 48, 1 Stat. 561 (France); Southeast Asia (Tonkin Gulf) Resolution,
Pub. L. No. 88-408,78 Stat. 384 (1964) (Vietnam); Authorization for Use of Military Force Against
Iraq Resolution, Pub. L. No. 102-1, 105 Stat. 3 (1991) (Persian Gulf).
38. In the Korean War, the vast majority of Congressmen approved of President Truman's
military response to the North Korean invasion, but Congress recessed soon after the initiation of the
war and President Truman chose not to ask for formal congressional approval when Congress
returned. See DEAN ACHESON, PRESENT AT THE CREATION: MY YEARS IN THE STATE
DEPARTMENT 414-15 (1969).
39. See SOFAER, supra note 14, at xvii, xx; see generally HENRY B. Cox, WAR, FOREIGN
AFFAIRS AND CONSTITUTIONAL POWER: 1829-1901 (1984). One notable exception was President
Polk's deliberate efforts to provoke a war with Mexico without Congressional approval. See
SCHLESINGER, supra note 2, at 41.
40. See W. Taylor Reveley III, Presidential War-Making: Constitutional Prerogative or
Usurpation?,55 VA. L. REv. 1243, 1257-60 (1969); WORMuTH ET AL., supra note 1, at 140-49.
41. See infra notes 44-69 and accompanying text.
CALIFORNIA LAW REVIEW
[Vol. 84:167
tive inter-branch harmony, it is not surprising that the judiciary was not
an active participant in war powers.
With the establishment of a large peacetime military force in the
twentieth century, the prospect of unilateral presidential war-making appeared, concerns about congressional control emerged, and questions
about the role of the judiciary arose. The Cold War period provoked
almost continual struggles between the two branches over war powers.
The first dispute accompanied the Cold War's first major conflict, which
began when North Korean forces invaded South Korea on June 24,
1950. Three days later, the United Nations Security Council issued a
resolution authorizing U.N. members to use force in resisting the invasion.43 President Truman immediately committed American military
forces without seeking congressional approval, even though substantial
support existed in Congress for the President's unilateral decision."
Secretary of State Dean Acheson and Senate Majority Leader Scott
Lucas both convinced Truman to rely on his Commander-in-Chief powers to support his actions, which led the President to refrain from
seeking the congressional authorization he could have obtained easily.
But while congressional authorization in the form of a resolution or
declaration of war was not sought, Congress did pass several appropriation bills and draft extensions to support the war.45
Only as the war soured at home and American commitments overseas expanded in response to the Soviet threat did some in Congress begin to question the President's authority. In that context the Truman
administration began to claim that the President had the independent
constitutional authority to commit troops anywhere in the world, with or
without congressional authorization.46 When the war first began, the
State Department had defended the intervention as a United Nations
''police action" authorized by the Security Council and by the
President's traditional authority. to send forces abroad to protect American interests and foreign policy. 7 As Congress began to debate
Truman's disposition of forces in both Korea and Europe in 1951, the
Truman administration articulated a more forceful position. According
to the administration, the President's independent, broad authority included the power to use the military to protect American interests
42.
43.
See SCHLESINGER, supra note 2, at 127-207; see generally KOH, supra note 1.
See Stromseth, supra note 1, at 622-24.
44.
See id at 625-31.
45. See id at 631-35.
46. See Assignment of Ground Forces of the United States to Duty in the European Area:
Hearings Before the Senate Comms. on Foreign Relations and Armed Services, 82d Cong., 1st Sess.
88-93 (1951) (testimony of Secretary of State Acheson); see also ACHESON, supra note 38, at 402-15.
47. Authority of the Presidentto Repel the Attack in Korea, Dep't of State Memorandum of July
3, 1950, DEP'T STATE BULL., July 31, 1950, at 173.
1996]
THE CONTINUATION OF POLITICS
abroad and to execute treaty obligations, such as those imposed by the
United Nations and the North Atlantic Treaty Alliance."
America's second major Cold War military intervention, Vietnam,
stood on perhaps firmer constitutional footing.49 Unlike the response to
the surprise attack in Korea, large-scale American involvement in
Vietnam began gradually. President Kennedy increased American
military personnel in Vietnam from 685 when he entered office to approximately 16,000 by the time of his assassination." Four days after
taking office, President Johnson reaffirmed American policy to help the
South Vietnamese government resist the stepped-up Vietcong offensive.
National Security Action Memorandum 273 declared that it was "the
central objective of the United States" to assist the South Vietnamese
"to win their contest against the externally directed and supported
Communist conspiracy."'" Another executive memorandum, drafted
the following spring, stressed the necessity for American support and
covert action to prevent a domino effect in Asia. 2
Formal congressional approval for American military involvement
finally came in the form of the much-maligned Tonkin Gulf
Resolution. After two apparent North Vietnamese attacks on American
destroyers in early August 1964, President Johnson "seized the opportunity" to seek congressional authorization for any actions he might
take in support of South Vietnam.53 Congress responded by passing the
Tonkin Gulf Resolution, which gave the President broad authorization
in the Southeast Asian theater "to take all necessary steps, including the
use of armed force, to assist any member or protocol state of [the
Southeast Asia Treaty Organization (SEATO)] requesting assistance in
defense of its freedom."' Notwithstanding the Tonkin Gulf Resolution,
48.
See
STAFF OF SENATE COMMS.
ON FOREIGN RELATIONS
AND
ARMED SERVICES,
82D
CONG., 1sT SESS., REPORT ON THE POWERS OF THE PRESIDENT TO SEND THE ARMED FORCES
OUTSIDE THE UNITED STATES 21-27 (Comm. Print 1951). See also Stromseth, supra note 1, at
635-38.
49. John Hart Ely acknowledges, and I believe quite rightly, that the Vietnam War met
constitutional requirements because of congressional authorization in the Tonkin Gulf Resolution.
See ELY, supranote 1, at 16. Ely's problems with the Vietnam War stem from what he believes were
unauthorized and hence unconstitutional military incursions in Cambodia and Laos. Id. at 69.
50. 3 THE PENTAGON PAPERS: THE DEFENSE DEPARTMENT HISTORY OF UNITED STATES
DECISIONMAKING ON VIETNAM 17-20 (Senator Gravel ed., 1971).
51. NATIONAL SECURITY ACTION MEMORANDUM 273, Nov. 26, 1963, reprinted in THE NEW
YORK TIMES, THE PENTAGON PAPERS 232, 233 (1971).
52. NATIONAL SECURITY ACTION MEMORANDUM 288, Mar. 17, 1964, reprintedin id. at 283-
84.
53. The words are those of GEORGE C. HERRING, AMERICA'S LONGEST WAR: THE UNITED
STATES AND VIETNAM, 1950-1975, at 122 (1979).
54. § 2,78 Stat. 384,384
advisers and President Johnson
to new heights. The scale
escalated: from 3,500 Marines
(1964). Armed with the Tonkin Gulf Resolution, Kennedy's former
then took flexible response's emphasis on the calibrated use of force
and intensity of troop involvement and aerial bombing quickly
landing at Danang in the spring of 1965, to 184,000 troops by the end
CALIFORNIA LAW REVIEW
[Vol. 84:167
the State Department echoed the Truman administration's earlier position that the President could order armed forces abroad unilaterally,
based on his Commander-in-Chief powers, historical practice, and the
United States' obligations under the SEATO treaty.5
A period of presidential weakness in the aftermath of the Vietnam
War and Watergate prompted congressional efforts to assert control over
the war-making process. In 1973, Congress passed the War Powers
Resolution over President Nixon's veto to
fulfill the intent of the framers ...and insure that the collective
judgment of both the Congress and the President will apply to
the introduction of United States Armed Forces into hostilities,
or into situations where imminent involvement in hostilities is
clearly indicated by the circumstances, and to the continued use
of such forces in hostilities or in such situations.56
The Resolution further declares Congress' belief that the President can
exercise his Commander-in-Chief powers "only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national
emergency created by attack upon the United States, its territories or
possessions, or its armed forces."' The Resolution attempts to prevent
the President from sending the American military into combat without
congressional approval, except in emergency situations.
Congress included three mechanisms in the Resolution designed to
assure congressional participation in the war-making process. First,
"[t]he President in every possible instance shall consult with Congress"
before introducing the armed forces into hostilities, whether imminent
or actual. 1 Second, the President must report to Congress within
forty-eight hours of sending the military into (a) hostilities or imminent
hostilities, (b) into the territory of another nation equipped for combat,
or (c) in numbers which substantially increase the size of the American
forces stationed in a foreign nation. 9 This report must explain why the
President sent the troops, describe the constitutional and legislative
of 1965, 385,000 by the end of 1966, and 486,000 by the end of 1967; from 25,000 sorties and 63,000
tons of bombs dropped in 1965, to 108,000 sorties and 226,000 tons in 1967. The simultaneous
breadth and precision of the intervention was almost comic: the bombing campaign extended to
military bases, infiltration routes, transportation facilities and power plants throughout North Vietnam;
at the same time, the White House directly ran the bombing campaign, with the President himself
often picking the targets (one order prohibited bomber pilots from hitting piers at Haiphong unless no
tankers were berthed there). See JOHN L GADDIS, STRATEGIES OF CONTAINMENT: A CRITICAL
APPRAISAL OF POSTWAR AMERICAN NATIONAL SECURITY POLICY 247-48 (1982).
55. DEFENSE OF VIET-NAM, supranote 36, at 596-98, 601-02.
56. War Powers Resolution, Pub. L. No. 93-148, § 2(a), 87 Stat. 555 (1973) (codified at 50
U.S.C. § 1541(a) (1988)).
57. Id. § 2(c), 87 Stat. at 555 (codified at 50 U.S.C. § 1541(c)).
58. Id. § 3, 87 Stat. at 555 (codified at 50 U.S.C. § 1542 (1988)).
59. Id. § 4(a), 87 Stat. at 555-56 (codified at 50 U.S.C. § 1543(a)).
1996]
THE CONTINUATION OFPOLITICS
authority for the action, and estimate the scope and duration of the intervention.0
The reporting requirement then triggers the third requirement: the
controversial sixty-day clock. Once the President has reported military
intervention to Congress, the Resolution requires the President to terminate the intervention within sixty days.6" Three events can forestall removal of American forces: (1) a declaration of war or specific congressional authorization; (2) congressional extension of the sixty-day period; or (3) congressional inability to meet due to armed attack on the
United States.62 The President may also extend the sixty-day period
once for thirty days if he certifies that the additional time is necessary to
permit the safe withdrawal of American armed forces.63 Finally, the
Resolution permits Congress to terminate an unauthorized presidential
use of military force at any time by concurrent resolution.'
Most commentators would agree that the Resolution has not proven
to be a resounding success. No President has ever acknowledged its
constitutionality, and no President has ever formally complied with its
terms. The high watermark of presidential recognition of the
Resolution was President Ford's messages to Congress in which he took
"note" of the Resolution when he sent military forces to evacuate
Americans from South Vietnam and Cambodia and to rescue American
sailors in the S.S. Mayaguez incident. 65 President Carter did not consult
with Congress before attempting the doomed rescue attempt of the
Iranian hostages, although he did send a report to Congress concerning
the incident that was "consistent" with the Resolution's provisions.'
President Reagan refused to comply formally with the Resolution when
he ordered the use of American military force in Lebanon, Grenada,
Libya, and the Persian Gulf, although he did report the deployments in
messages that were "consistent with the Resolution."67 In both the
60. Id.
61. Id. § 5(b), 87 Stat. at 556 (codified at 50 U.S.C. § 1544(b)). The clock begins ticking after a
report is submitted or is required to be submitted, whichever is earlier. Id.
62. Id.
63. Id.
64. Id. § 5(c), 87 Sta. at 557-58 (codified at 50 U.S.C. § 1544(c)). Section 5(c)'s concurrent
resolution device is almost certainly unconstitutional after the Supreme Court's invalidation of the
legislative veto in INS v. Chadha, 462 U.S. 919, 944-59 (1983). But see Carter, supra note 2, at 12933 (declaring section 5(c) not necessarily unconstitutional after Chadha).
65. See Report of President Gerald R. Ford (May 15, 1975), reprinted in FRANCK & GLENNON,
supra note 36, at 593.
66. Letter to the Speaker of the House and the President Pro Tempore of the Senate Reporting
on the Operation (Apr. 27, 1980), reprintedin PUBLIC PAPERS OF THE PRESIDENTS OF THE UNITED
STATES: JIMMY CARTER
1980-81, at777.
67. In the Lebanon intervention, President Reagan did sign legislation that found that section
4(a)(1) had been triggered and that the 60-day clock was running. Multinational Force in Lebanon
Resolution, Pub. L. No. 98-119, § 2(b), 97 Stat. 805 (1983). However, the President's signature did
CALIFORNIA LAW REVIEW
[Vol. 84:167
Panama invasion and Operation Desert Storm in the Persian Gulf,
President Bush sent reports to Congress which he noted were "consistent with" the War Powers Resolution, but he did not acknowledge
that he had to consult with Congress or that he had to remove the troops
in sixty days.6" And, participating in the NATO interventions in Bosnia,
President Clinton notified Congress of military action in messages that
used similar language.69
Despite presidential noncompliance, Congress has never sought to
enforce the Resolution's terms either by using section 5's concurrent
resolution mechanism or by removing funding for the military action.
Congressional inaction has led challengers of the president's use of
military force to seek judicial declarations that the President has violated
the Constitution.
2. The Courts and the War Powers
Although individual members of Congress have criticized presidential actions in these various wars, Congress as a body has never
sought to block executive war-making in the courts. But individuals
who have been adversely affected by these military interventions have
challenged presidential action by seeking redress in the courts. These
actions have met with little success, because the Supreme Court has deferred to the conduct of international relations by the other branches,
particularly the President. By relying on doctrines including political
questions, ripeness, mootness, and standing, and by refusing to grant a
writ of certiorari, the Court has studiously avoided becoming embroiled
70
in war powers disputes.
From the earliest days of the Republic, the Court has recognized
that the other branches must permit the President some amount of discretion in the conduct of foreign relations. When Chief Justice John
Marshall was a Congressman, he declared that the President was "the
sole organ of the nation in its external relations."' Later, when he
not constitute an endorsement of the Resolution, especially when viewed in light of the fact that the
statute gave the President a new 18-month period within which to keep forces in Lebanon. See id. §
6, 97 Stat. at 807.
68. See Report of President George Bush (Dec. 21, 1989), reprinted in FRANCK & GLENNON,
supra note 36,at 596 (Panama); Report of President George Bush (Aug. 9, 1990), reprinted in id. at
597 (Persian Gulf).
69. President Clinton also has repeatedly asserted in regards to contemplated American
interventions in Haiti and Bosnia that he does not need congressional approval to send American
troops into harm's way. See, e.g., The President's News Conference, 30 WEEKLY COMP. PREs. DOC.
1614, 1616 (Aug. 3, 1994) (Haiti); Letter to Senate Leaders on the Use of United States Armed
Forces in International Operations, 29 WEEKLY COMP. PRES. Doc. 2104 (Oct. 18, 1993) (Haiti and
Bosnia).
70. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT
THE BAR OF POLITICS 111-98 (1962).
71.
10 ANNALS
OF CONGR.
613 (1800).
1996]
THE CONTINUATION OFPOLITICS
wrote Marbury v. Madison, Marshall made clear that there were
"[q]uestions in their nature political" which were entrusted to the executive branch and removed from judicial review.7 2 In discussing
whether the Jefferson administration could withhold Marbury's commission, Marshall wrote:
By the constitution of the United States, the president is invested with certain important political powers, in the exercise of
which he is to use his own discretion, and is accountable only to
his country in his political character, and to his own conscience.... The subjects are political.., and being entrusted to
the executive, the decision of the executive is conclusive.
in their nature political, or which are, by the
constitution and laws, submitted to the executive, can never be
made in this court.73
Even when faced with the modem wars of the twentieth century, the
Court has continued to recognize that foreign affairs questions often are
beyond judicial competence. In 1918, the Court in Oetjen v. Central
Leather Co. declared, "The conduct of the foreign relations of our
Government is committed by the Constitution to the Executive and
Legislative-'the political'-Departments of the Government, and the
propriety of what may be done in the exercise of this political power is
not subject to judicial inquiry or decision. '74 The twentieth-century
Court also has held that the political question doctrine applies to the
determination of when war has ended7675 and whether the United States
has recognized a foreign government.
The foremost statement of the convergence of judicial deference
and executive discretion in foreign affairs came in Justice Sutherland's
opinion in United States v. Curtiss-WrightExport Corp.:
Not only... is the federal power over external affairs in
origin and essential character different from that over internal
affairs, but participation in the exercise of the power is significantly limited. In this vast external realm, with its important,
complicated, delicate and manifold problems, the President alone
has the power to speak or listen as a representative of the nation.
...
Questions
It is important to bear in mind that we are here dealing... [with] the very delicate, plenary and exclusive power of
72.
5 U.S. (1 Cranch) 137, 170 (1803).
73.
Id. at 165-66, 170.
74. Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); see also Chicago & S.Air Lines,
Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948) (holding that executive decisions as to foreign
policy are constitutionally assigned to the political branches, not the judiciary).
75. See Commercial Trust Co.v. Miller, 262 U.S. 51, 57 (1923).
76.
See United States v. Belmont, 301 U.S. 324, 330 (1937); Oetjen, 246 U.S. at 302.
CALIFORNIA LAW REVIEW
[Vol. 84:167
the President as the sole organ of the federal government in the
field of international relations
....
77
Baker v. Carrexpresses the modern version of the political question doctrine.7 Although not a foreign affairs case, several of Baker's
justiciability factors apply with vigor to war powers and foreign affairs
issues. Although "it is error to suppose that every case or controversy
which touches foreign relations lies beyond judicial cognizance, '79
Justice Brennan commented:
Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a
discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single-voiced
statement of the Government's views. 0
Baker's broad definition of the political question doctrine has permitted enhanced presidential powers in foreign affairs, primarily because the "single-voiced statement of the Government's views" has
come almost exclusively from the executive branch. Over time, Chief
Justice Marshall's original doctrine of presidential discretion in certain
political areas involving the "nation, not individual rights,"'" has neatly
dovetailed with the President's growing control over foreign affairs."
Given these broad doctrines, it should come as no surprise that the
Supreme Court has avoided challenges to the use of the war power. In
the Korean and Vietnam Wars, for example, the Court regularly refused
to grant a writ of certiorari for cases brought by draftees challenging the
wars' constitutionality. 3 Several times, Justice Douglas dissented from
the denial of certiorari on the ground "that the constitutional questions
raised by conscription for a presidential war are both substantial and
77. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20 (1936).
78. Justice Brennan wrote:
Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department; or
a lack of judicially discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind clearly for
nonjudicial discretion; or the impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from multifarious pronouncements by various departments on
one question.
Baker v. Carr, 369 U.S. 186,217 (1962).
79. Id.at211.
80.
Id. (footnote omitted).
81. Marbury v. Madison, 5 U.S. (I Cranch) 137, 166 (1803).
82. See, e.g., The Prize Cases, 67 U.S. (2 Black) 635, 666-71 (1863) (President had power to
blockade the South during Civil War); Durand v. Hollins, 8 F. Cas. 111, 112 (C.C.S.D.N.Y. 1860) (No.
4,186) (President has discretion to act to protect lives and property of citizens).
83. See, e.g., Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), cert. denied,416 U.S. 936
(1974).
19961
THE CONTINUATION OF POLITICS
justiciable," but to no avail.84 Moreover, lower courts faced with
Vietnam War suits regularly dismissed them as presenting political
questions. 5 For example, determining that the President and Congress
had made a joint decision to wage the war, the Second Circuit held that
"the constitutional propriety of the means by which Congress has
chosen to ratify and approve [the Vietnam War] is a political question." 6 Two years later the District of Columbia Circuit agreed that
whether the form of congressional approval for a war is constitutionally
sufficient was a political question. 7 Furthermore, it held that whether
President Nixon had complied with congressional desires to bring the
war to an end was also non-justiciable."5 The D.C. Circuit abstained
from decision not only because of difficulties in discovering judicial
standards, but also out of deference to the executive:
Even if the necessary facts were to be laid before it, a court
would not substitute its judgment for that of the President, who
has an unusually wide measure of discretion in this area, and
who should not be judicially condemned except in a case of
clear abuse amounting to bad faith. Otherwise a court would be
ignoring the delicacies of diplomatic negotiation, the inevitable
bargaining for the best solution of an international conflict, and
the scope which in foreign affairs must be allowed to the
President if this country is to play a responsible role in the
council of the nations.8 9
The judicial tradition of deference has continued during the postVietnam era, even in the context of the War Powers Resolution. 0 When
various plaintiffs challenged the Reagan administration's use of the
American military in Central America in 1982 and the Persian Gulf in
1987, the D.C. Circuit dismissed the suits as presenting non-justiciable
political questions. 91 When twenty-nine Members of Congress sued
President Reagan for allegedly sending illegal aid to El Salvador in violation of the War Powers Resolution, the same court held that whether
84. DaCosta v. Laird, 405 U.S. 979, 979 (1972) (Douglas, J., dissenting); see Massachusetts v.
Laird, 400 U.S. 886, 886-99 (1970) (Douglas, J., dissenting); Mor v. McNamara, 389 U.S. 934, 93539 (1967) (Douglas, J., dissenting).
85. See, e.g., Holtzman, 484F.2d at 1308-12; Mitchell v. Laird, 488 F.2d 611, 614-15 (D.C. Cir.
1973); DaCosta v. Laird, 471 F.2d 1146, 1147-50 (2d Cir. 1973); Samoff v. Connally, 457 F.2d 809,
809-10 (9th Cir.), cert. denied, 409 U.S. 929 (1972); Orlando v. Laird, 443 F.2d 1039, 1043-44 (2d
Cir.), cert. denied, 404 U.S. 869 (1971); Simmons v. United States, 406 F.2d 456, 459-60 (5th Cir.),
cert. denied, 395 U.S. 982 (1969).
86. Orlando,443 F.2d at 1043.
87. Mitchell,488 F.2d at 615-16.
88. Id.
89. Id. at 616.
90. The War Powers Resolution contains no explicit judicial review provisions.
91. See Sanchez-Espinoza v. Reagan, 770 F.2d 202, 210 (D.C. Cir. 1985) (Central America)
and cases cited infra note 92.
CALIFORNIA LAW REVIEW
[Vol. 84:167
the President had to comply with the Resolution's terms presented a
non-justiciable political question.92
3. The Persian Gulf War
The current state of the war powers doctrine is probably best
summarized by examining the legal events surrounding the Persian Gulf
War. On August 2, 1990, Iraqi forces invaded Kuwait. President Bush
responded by sending about 230,000 American troops to the Gulf, and
on November 8 he sent another 200,000 for offensive military operations.93 Later that month the United Nations Security Council gave
America and her allies the authorization it needed to "use all necessary
means" to eject Saddam Hussein's forces from Kuwait. 94 Although he
received informal congressional support, President Bush did not ask for
a declaration of war from Congress. Instead, he used his Commanderin-Chief powers to send forces, already authorized and funded by
Congress, to the theater of operations.
President Bush's decision to act unilaterally did not sit well with
many in Congress. The Senate Majority Leader stated that "a planned
military offensive, which is, by definition, an act of war, must receive the
prior authorization of the Congress."9 5 On November 19, fifty-three
Members of the House of Representatives and one Senator brought suit
in the federal district court of the District of Columbia.96 The plaintiffs
sought an injunction against the President preventing him from beginning offensive operations without first obtaining a declaration of war or
other explicit congressional authorization. The congressmen claimed
that "their interest guaranteed by the War Clause of the Constitution is
in immediate danger of being harmed by military actions the President
may take against Iraq." 97
In announcing the decision in Dellums v. Bush, Judge Greene
agreed with many of the plaintiffs' arguments, but ultimately dismissed
the suit on justiciability grounds. As a threshold matter, the court
brushed aside the executive's claim that the court could not decide the
case because it presented a "political question." It found that "an of92. Crockett v. Reagan, 720 F.2d 1355 (D.C. Cir. 1983), cert. denied, 467 U.S. 1251 (1984); see
also Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987), aff'd, No. 87-5426 (D.C. Cir. Oct. 17, 1988)
(per curiam) (challenge by 110 members of Congress to the reflagging operation in the Persian Gulf
in 1987 as violating the War Powers Resolution).
93. See Letter to the Speaker of the House and the President Pro Tempore of the Senate on the
Deployment of Additional United States Armed Forces to the Persian Gulf, 26 WEEKLY COMP. PRES.
Doc. 1834 (Nov. 16, 1990).
94. Res. 678, U.N. SCOR, 46th Sess., 2693d mtg. (Nov. 29, 1990), reprinted in FRANCK &
GLENNON, supra note 36, at 646.
95. Dellums v. Bush, 752 F. Supp. 1141, 1151 n.28 (D.D.C. 1990).
96. See generally id.
97. Id. at 1147.
1996]
THE CONTINUATION OFPOLITICS
fensive entry into Iraq by several hundred thousand United States servicemen under the conditions described above could be described as a
'war"' under the Constitution, and that Congress had the sole authority
to declare war.98 The court then held that the congressmen had standing
to pursue the case because the prospect of war, and the possibility that
the plaintiffs would not have an opportunity to vote on a declaration of
war, stated a cognizable injury." However, the court refused to reach
the merits because the plaintiffs represented only a fraction of
Congress: "[U]nless the Congress as a whole, or by a majority, is heard
from, the controversy here cannot be deemed ripe; it is only if the
majority of the Congress seeks relief from an infringement on its constitutional war-declaration power that it may be entitled to receive it."'"
In a decision perhaps less heralded by the press and academia,
another judge of the same court agreed with the result in Dellums, but
on more forceful political question grounds. In Ange v. Bush,'° a sergeant in the National Guard challenged the President's order deploying
him to the Persian Gulf as a violation of the Declare War Clause and the
War Powers Resolution. Unlike Judge Greene in Dellums, Judge
Lamberth held that determining whether the President had violated the
Constitution or the Resolution by sending troops to the Gulf without
specific congressional approval was a non-justiciable political question.
Referring to Baker v. Carr'stest for political questions, Judge Lamberth
found that the plaintiff sought a finding "which the judicial branch
cannot make pursuant to the separation of powers,""° and held that the
plaintiff was asking "the court to delve into and evaluate those areas
where the court lacks the expertise, resources, and authority to explore." 0 3 Like Judge Greene, Judge Lamberth also held that plaintiff's
claim was not ripe for decision because it called for a speculative decision on whether the President actually intended to send the American
forces into war.) 4
Events after the district courts' rulings are familiar. Although
Congress had approved appropriations and reserve call-ups for
Operation Desert Storm, many Members in both the House and Senate
opposed the use of force to eject Iraq from Kuwait. On January 8, the
President asked Congress for a resolution supporting the use of "all
possible means" to implement the U.N. Security Council's directives,
but he also made clear the next day that he did not need congressional
98.
Id. at 1146.
99.
Id. at 1147-48.
100.
101.
102.
103.
Id. at 1151.
752 F. Supp. 509,510 (D.D.C. 1990).
Id. at 512.
Id. at 514.
104.
Id. at 515.
CALIFORNIA LAW REVIEW
[Vol. 84:167
approval as a constitutional matter. 5 After televised debates, Congress
approved a resolution supporting the President on January 12. Five
days later, navy ships began launching Tomahawk cruise missiles
against targets in Iraq, and the Air Force launched a 2000-sortie-a-day
air assault that systematically destroyed Iraq's air force, supply depots,
ground assets, and command-and-control facilities. On February 24,
allied ground forces began a massive armor and infantry offensive that
sent Iraqi forces in Kuwait into retreat and battered the Iraqi Republican
Guards inside Iraq itself. On February 28, only 100 hours after ground
operations had begun, President Bush declared a cease-fire, and Iraq
announced that it would comply with all U.N. resolutions.
The actions of the President, Congress, and the courts during the
Persian Gulf crisis illustrate the nature of war powers in our constitutional democracy. Even though the modem Supreme Court has never
ruled on the proper constitutional allocation of war powers among the
three branches, what Professor Reisman calls an "operational code of
competence"" has formed among them. In other words, the President,
Congress, and the federal courts have acted according to a set of norms
and rules that they deem authoritative. In the war powers context, the
President has taken the primary role in deciding when and how to wage
war. Congress has fallen into the role of approving the interventions
either through authorization before operations have begun or appropriations after the fact, while the judicial branch has abstained from
inter-branch war powers disputes because they raise non-justiciable
political questions. Put less charitably, we have a system which
Professor Koh describes as one of "executive initiative, congressional
acquiescence, and judicial tolerance."" Professor Koh's views are emblematic of a growing consensus among international and constitutional
law scholars that the President's war powers grasp exceeds his constitutional reach. This critique is discussed below.
C. The Academic Critique: The PresidentAgainst the Professors
For the most part, legal academia has sharply criticized the current
state of war powers. In a series of recent books, foreign relations and
international law scholars such as John Hart Ely,' Louis Henkin,19
Michael Glennon," 0 Thomas Franck,"' Louis Fisher,"' and Harold
105. See LEHMAN, supra note 11, at 46-47.
106. See W. Michael Reisman, War Powers: The OperationalCode of Competence, 83 AM. .
INT'L L. 777 (1989).
107. KOH, supra note 1, at 117.
108. See ELY, supra note 1.
109. See HENKIN, supra note 1.
110. See GLENNON, supranote 1.
111. See FRANCK, supranote 3.
1996]
THE CONTINUATION OFPOLITICS
Koh,"I have taken the Presidents to task for waging unconstitutional war
and have chastised the courts for abdicating their duty to adjudicate war
power cases. These scholars rest their arguments on three bases: first,
that the Framers intended Congress to exercise exclusive control over
the decision to go to war; second, that modem separation of powers
doctrine requires congressional approval of war; and third, that the
courts have a constitutional duty to determine the proper allocation of
war-making power between the President and Congress.
1.
Original Intent Betrayed
In a curious reversal of roles, the war powers question displays critics of the legal theories of the Reagan and Bush administrations readily
invoking the intent of the Framers. They claim that the Declare War
Clause, in light of their reading of the thoughts of the Constitution's
drafters, clearly indicates that the Framers intended that Congress play
an equal, if not paramount, role in the decision to go to war. This
original intent argument is an important part of the academic critique of
presidential power that this Article intends to refute." 4
In his recent book, War and Responsibility, Professor Ely makes
the strongest case for the idea that the Framers wanted Congress to have
the upper hand. After reading the relevant constitutional clauses, Ely
declares that there is a "clarity of the Constitution on this question. ' "5
Often it is true that "the 'original understanding' of the document's
framers and ratifiers can be obscure to the point of inscrutability;" but
"[iun this case," Ely says bluntly, "it isn't. 1116 According to Ely, the
inescapable conclusion is that "all wars, big or small, 'declared' in so
many words or not.., had to be legislatively authorized."" 7 Only
when Congress has authorized a war do the President's Commanderin-Chief powers over the armed forces kick in.
112. See FISHER, supra note 1.
113. See KOH, supra note 1.
114. Almost all of the current studies on war and foreign affairs powers rely on the historical
studies of the Framers' intent by Charles Lofgren, Abraham Sofaer, and Raoul Berger written during
the Vietnam War. See CHARLES A. LOFGREN, "GOVERNMENT FROM REFLECTION AND CHOICE":
CONSTITUTIONAL ESSAYS ON WAR, FOREIGN RELATIONS, AND FEDERALISM (1986); SOFAER, supra
note 14; Berger, supra note 13. I believe these studies suffered from two major defects. Fu'st, they
could not benefit from the publication of THE COMPLETE ANTI-FEDERALIST (Herbert J. Storing ed.,
1981) [hereinafter STORING], the massive project of the THE DOCUMENTARY HISTORY OF THE
RATIFICATION OF THE CONSTITUTION
(Merrill Jensen ed., 1978) [hereinafter
JENSEN],
or the large
numbers of books and articles which have appeared in the last decade on the Framers and their time.
Second, they paid insufficient attention to certain aspects of pie-1787 history, such as the British or
colonial sources. Instead of institutional or constitutional development, these studies focused on
selected comments by various Framers.
115. ELY, supra note 1, at 5.
116. Id. at3.
117. Id.
CALIFORNIA LAW REVIEW
[Vol. 84:167
Ely builds support for his conclusion by unearthing evidence of
the Framers' intent. He points to statements by James Madison, James
Wilson, and Justice Story which suggest that the Framers placed the
authority to declare war in Congress because they wanted to reduce the
number of occasions when the nation would go to war. Ely and others" 8 place great emphasis on a speech by James Wilson before the
Pennsylvania ratifying convention:
This system will not hurry us into war; it is calculated to guard
against it. It will not be in the power of a single man, or a single
body of men, to involve us in such distress; for the important
power of declaring war is vested in the legislature at large: this
declaration must be made with the concurrence of the House of
Representatives: from this circumstance we may draw a certain
conclusion that nothing but our national interest can draw us
into war.119
Apparently the Framers thought that the more numerous the body that
decided on war, the less likely war would be." Thus, as Ely notes, the
Framers "pursued a substantive end (the limitation of war to the absolutely necessary) by procedural means (requiring the concurrence of
both houses of Congress as well as the president).''
Armed with this evidence, Ely finds that the Framers' design has
"complete contemporary relevance."'" Requiring Congress to authorize war not only slows down the decision to go to war, but also forces
those who shall pay for the war-the People of the United States-to
reflect on its wisdom. Other scholars interpret the Framers' intent as not
only an effort to "clog" the processes of war, but also as an affirmative
attempt to curtail the powers of the President. According to Professor
Glennon, "[o]riginal constitutional materials indicate that the Framers
intended a narrowly circumscribed presidential war-making power, with
the Commander in Chief Clause conferring minimal policy-making
118.
119.
See, e.g., Berger, supra note 13, at 36-37.
2 JONATHAN ELLIOT, THE DEBATES IN
THE SEVERAL STATE CONVENTIONS ON THE
ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT
PHILADELPHIA, IN
1787, at 528 (1836).
120. The case of the Spanish American War of 1898 provides a real-life contradiction to this
theory. Congress and various influential citizens had clamored for a war against Spain for several
years, but had met resistance from President Grover Cleveland. See, e.g., EDMUND MORRIS, THE
RISE OF THEODORE ROOSEVELT 572 (1979); see also SCHLESINGER, supra note 2, at 82. Congress
also proved more hawkish than the President during the Quasi-War with France in 1798 and the War
of 1812 with the British. See generally ALEXANDER DECONDE, THE QUASI-WAR: THE POLITICS
AND DIPLOMACY OF THE UNDECLARED WAR WITH FRANCE
1797-1801 (1966).
121. ELY, supranote 1, at 140 n.10.
122. Id. at 5. Ely criticizes Robert Bork's support for broad executive war-making powers as
"out of accord with [his] usual ... 'original intent' approach to constitutional interpretation." Id. at
143 n.24; see generally Bork, supra note 11.
1996]
THE CONTINUATION OF POLITICS
authority"'" except in the case of sudden attacks. 4 Agreeing with
Glennon, 'Professor Henkin notes, "[t]he President's designation as
Commander in Chief, then, appears to have implied no substantive
authority to use the armed forces, whether for war (unless the United
States were suddenly attacked) or for peacetime purposes, except as
Congress directed."'"
Critics of presidential war powers also maintain that the bulk of
American history supports a vision of shared authority over national
security. They conclude that during all but minor military deployments
abroad during the nineteenth and early twentieth centuries, presidents
did not use force without authorization. Concludes Ely, "Of course real
life is never entirely neat and clean, but the original constitutional understanding was quite consistently honored from the framing until
n
1 '15O
1~26
1950.
While substantially in agreement, Professor Koh sees a more subtle
shift from the Framers' intent of congressional pre-approval of military
action to a system in practice where the President leads and Congress
follows: "Although the Constitution's drafters had assigned Congress
the dominant role in foreign affairs, the president's functional superiority in responding to external events enabled him to seize the preeminent role in the foreign policy process, while Congress accepted a
reactive, consultative role."'27 However, according to Koh, even when
the President took the initiative in war powers, he always sought congressional support for the use of force afterwards. In Koh's mind, this
arrangement satisfies the constitutional design because it ensures "balanced institutional participation" in foreign affairs decision making by
1
the three branches M
These scholars see the Constitution violated first by President
Truman in the Korean War. They argue that President Truman's decision to enter the Korean War violated the Constitution because he never
received specific congressional approval to do so. 29 Although these
scholars are split over whether the Tonkin Gulf Resolution constituted a
123. GLENNON, supra note I, at 80-81. Glennon even invokes the name of Alexander Hamilton,
that great worshipper of executive power, for the proposition that Congress alone possesses the
authority to take the country into war. Id. at 84 (citing Alexander Hamilton, The Examination,
reprintedin 25 THE PAPERS OF ALEXANDER HAMILTON 444, 456 (Harold C. Syrett ed., 1977)).
124. See GLENNON, supra note 1, at 84. Admitting that the Constitutional Convention changed
Congress' authority from the power to "make" war to the one to "declare" war, Glennon refers to
James Madison's explanation of the change as one to "[leave] to the Executive the power to repel
sudden attacks." Id. at 82.
125. HENIUN, supranote 1, at 26.
126. ELY, supra note 1, at 10. Unfortunately, Ely leaves discussion of this not uncontroversial
statement to the footnotes, where it takes up almost three pages. Id. at 147-51 n.54.
127. KOH, supranote 1, at 79.
128. Id. at 69.
129. See, e.g., ELY, supra note 1, at 10-11, 12-23.
CALIFORNIA LAW REVIEW
[Vol. 84:167
sufficient authorization for the Vietnam War,"' they remain in agreement that the post-Vietnam war conflicts were unconstitutional. For example, both Glennon and Koh argue that the Reagan and Bush
interventions, such as those in Grenada and Panama, violated the
Constitution because they did not receive congressional approval.
2. The Separation of Powers Betrayed
Proponents of a reinvigorated congressional role in war powers also
rest their arguments on separation of powers doctrine. Contending that
the deference paid to the President in Curtiss-Wright was unjustified,
critics of presidential power argue that foreign affairs should receive no
special exemption from the separation of powers principle established
by Justice Jackson in his concurring opinion in Youngstown Sheet &
Tube Co. v. Sawyer:
that in areas where both the President and
Congress share powers, the Constitution places limits on how far the
President may act without the support of Congress.
Youngstown involved a 1952 national steel strike that threatened
the war effort in Korea. Relying on his Commander-in-Chief and inherent executive powers, Truman issued an order authorizing the
Secretary of Commerce to seize and run the steel mills. The steel companies challenged the seizure in federal court on the ground that the
President had not acted pursuant to the Constitution or statute. Not only
had Congress failed to authorize such action, it recently had considered
and rejected a law that would have given the President such powers. In
response, the President claimed he was acting to secure the supply of
steel necessary for the war in Korea pursuant to his wartime powers.,
By a six-to-three vote, the Supreme Court rejected the President's
attempt to exercise his executive war-making powers in the domestic
sphere.
Youngstown is best known not for its majority opinion, but for
Justice Jackson's concurrence, and it is on this concurrence that critics
of presidential dominance rest their case for a vision of shared
executive-legislative decision-making in foreign affairs. Jackson admitted that "[t]he actual art of governing under our Constitution does not
and cannot conform to judicial definitions of the power of any of its
branches based on isolated clauses or even single Articles torn from
context."''
Nonetheless, he continued, "[p]residential powers are not
fixed but fluctuate, depending upon their disjunction or conjunction
Compare ELY, supra note 1, at 16, with GLENNON, supra note 1, at 94-95.
343 U.S. 579, 635-38 (1952) (Jackson, J., concurring).
See id. at 582-86; MAEVA MARCUS, TRUMAN AND THE STEEL SEIZURE CASE:
OF PRESIDENTIAL POWER 74 (1977).
133. Youngstown, 343 U.S. at 635 (Jackson, J., concurring).
130.
131.
132.
THE LIMITS
1996]
THE CONTINUATION OFPOLITICS
with those of Congress."'" Justice Jackson then articulated his famous
three-part test for determining the validity of the exercise of executive
power: (1) when the President and Congress act together, the
President's power is at its zenith; (2) when the President acts in vio-
lation of an act of Congress, his power "is at its lowest ebb"; (3) When
the President acts in the absence of congressional authorization in an
13
area of concurrent powers, he is in "a zone of twilight.""
While
Justice Jackson's thoughts on executive power took the form of a
concurrence, a majority of the Court since has made it part of the
Court's separation of powers jurisprudence. 6
Most scholars rely on Youngstown to undercut presidential claims
of unilateral war-making power vis-a-vis Congress.
Koh reads
Youngstown as "embrac[ing] the principle of balanced institutional
participation in foreign affairs,"' 37 one that would suggest that both the
Congress and the President must agree on the setting of foreign policy
and the use of war powers. Henkin applies Youngstown in conjunction
with the War Powers Resolution to conclude that Presidents who use
force in compliance with the Resolution will find their authority at a
maximum; Presidents who do not will find their power at its lowest
ebb.' Glennon argues for an even narrower conception of presidential
authority: presidential attempts to initiate war are always at the third
category ("lowest ebb"), because the Declare War Clause not only
134.
135.
1d.
Jackson wrote:
1. When the President acts pursuant to an express or implied authorization of Congress,
his authority is at its maximum, for it includes all that he possesses in his own right plus all
that Congress can delegate. In these circumstances, and in these only, may he be said (for
what it may be worth) to personify the federal sovereignty.
If his act is held
unconstitutional under these circumstances, it usually means that the Federal Government as
an undivided whole lacks power. A seizure executed by the President pursuant to an Act of
Congress would be supported by the strongest of presumptions and the widest latitude of
judicial interpretation, and the burden of persuasion would rest heavily upon any who might
attack it.
2. When the President acts in absence of either a congressional grant or denial of
authority, he can only rely upon his own independent powers, but there is a zone of twilight
in which he and Congress may have concurrent authority, or in which its distribution is
uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at
least as a practical matter, enable, if not invite, measures on independent presidential
responsibility. In this area, any actual test of power is likely to depend on the imperatives of
events and contemporary imponderables rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or implied will
of Congress, his power is at its lowest ebb, for then he can rely only upon his own
constitutional powers minus any constitutional powers of Congress over the matter. Courts
can sustain exclusive presidential control in such a case only by disabling the Congress from
acting upon the subject. Presidential claim to a power at once so conclusive and preclusive
must be scrutinized with caution, for what is at stake is the equilibrium established by our
constitutional system.
Id. at 635-38 (Jackson, J., concurring) (footnotes omitted).
136. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 668-69 (1981).
137. KoH, supranote I, at 112.
138. See HENKIN, supra note 1, at 17-43.
CALIFORNIA LAW REVIEW
[Vol. 84:167
"empowers Congress to declare war," but also "serves as a limitation
on executive war-making power, placing certain acts off limits for the
President." 39
3. Judicial Abdication
Although scholars may differ in their critique of current war powers practice, they agree on their most concrete recommendation for reform: an active, intrusive judiciary. Looking doubtfully upon the
40
courts' attempts to shy away from the merits of war powers cases,'
leading foreign relations scholars argue that the federal courts have
"abdicated" their role in our constitutional system of checks-andbalances and unwittingly have contributed to the emergence of an impe4
rial presidency.' '
Thomas Franck has put forth a representative argument against the
political question doctrine. He concludes that the judiciary has failed in
its responsibility to apply the rule of law to foreign affairs.'42 To be
sure, Franck accurately credits Chief Justice Marshall for articulating the
doctrine in Marbury v. Madison: "[T]he president is invested with certain important political powers, in the exercise of which he is to use his
own discretion, and is accountable only to his country in his political
character, and to his own conscience."'43 Almost two centuries later,
according to Franck, judges and lawyers justify the doctrine on four
grounds. First, the Constitution gives the President the primary role in
foreign affairs to speak as the single organ of the nation, and therefore
the courts should not interfere in cases where they might embarrass the
President or disrupt the conduct of international relations. Second, foreign affairs cases involve issues where no legal standards are available.
Third, foreign affairs cases require the production of evidence that is
too complex, technical, unobtainable, or just plain foreign for an
American judge to use. Fourth, prudentially, the courts do not want to
intervene in foreign affairs for fear that the other branches will ignore
the courts' order, thereby reducing the prestige and power of the federal courts.'"
To Franck, such arguments in favor of the political question doctrine are fundamentally mistaken because they violate another of Chief
139. GrENNo, supranote 1, at 17.
140. See, e.g., Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987), affid, No. 87-5426 (D.C. Cir.
Oct. 17, 1988) (per curiam).
141. See, e.g., FISHER, supra note 1, at 87; FRANCK, supra note 3, at 3-9, 8 ("A foreign policy
exempt from judicial review is tantamount to governance by men and women emancipated from the
bonds of law.").
142. See generally FRANCK, supra note 3.
143. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165-66 (1803).
144. FRANCK, supra note 3, at 45.
THE CONTINUATION OFPOLITICS
19961
Justice Marshall's great dictums: "It is, emphatically, the province and
duty of the judicial department to say what the law is.-"145 By avoiding
foreign affairs (and more specifically war powers) cases on political
question grounds, judges have exempted the President from "the normal judicial umpiring process" that checks his actions at home.1 46
"Carried to its logical extreme, this doctrine holds that the political
authorities are suit-proof as long as they purport to act in pursuance of
their 'foreign affairs' power." 47 Moreover, Franck claims that many of
the cases where the Court has said that the political question doctrine
applies do not really involve foreign affairs, or do so only tangentially.
Rather, "judicial abdication in foreign-affairs cases has entered the jurisprudence primarily through rhetorical extravagance in cases with little
or no foreign content rather than by a juridical practice of rigid abstinence in real foreign-affairs disputes."' "
Franck also argues that judges are not applying the political question doctrine faithfully. Rather, judges apply the doctrine selectively,
seemingly by their own whim or political tastes. When they do apply
the doctrine, Franck claims that judges are merely indulging their slavish obedience to the President in all things foreign. Echoing a thesis put
forward in the 1970s by Henkin, 49 Franck concludes that judges are
really deciding the cases on the merits in favor of the executive branch
or the government, and are merely using the doctrine as cover for their
actions.
"[T]he jurisprudence has a powerful whiff of hypocrisy: Judges say they will abstain but fail to do so; judges proclaim the
separation of powers but almost always decide in favor of the government . . .. ""
What is to be done? Franck and others agree that courts should
throw out the political question doctrine instead of political question
cases.'
They take Youngstown as a model and argue that courts can
decide war power or foreign relations cases just as easily as they can decide any other separation of powers case, such as Bowsher v. Synar 52 or
INS v. Chadha.5 1 If the courts refuse to hear war powers cases, then
critics recommend that Congress must force them to do so by including
provisions in foreign affairs statutes requiring courts to take jurisdic-
145.
146.
Marbury, 5 U.S. (ICranch) at 176.
FRANCK, supranote 3,at 4.
147.
Id.
148.
149.
Id. at 21.
See generally Louis Henkin, Is There a "Political Question" Doctrine?, 85
(1976).
150.
151.
152.
153.
FRANCK, supranote 3,at 30.
See, e.g., ELY, supranote 1,at 55-56; KOH, supra note 1, at 221-24.
478 U.S. 714 (1986).
462 U.S. 919 (1983).
YALE
Li. 597
CALIFORNIA LAW REVIEW
(Vol. 84:167
tion.'" For example, Professor Ely recommends amending the War
Powers Resolution to allow soldiers or members of Congress to bring
suit in federal court to enforce its provisions. 5' Ely's provision would
also specifically prohibit courts from dismissing the case on the grounds
of political question or other justiciability doctrines. Professor Koh
goes one step farther by proposing that Congress pass a series of
"framework" statutes in each foreign affairs area "that would override
the abstention doctrines that the courts have wrapped around themselves."'5 6 In this way, these scholars tell us, courts will stop, in Chief
Justice Marshall's words, committing "treason to the constitution" by
not taking jurisdiction when they should. 57
Scholars, thus, have provided a critique of current relationships
between the three branches in the war powers area, which draws on
original intent analysis and separation of powers concerns. The comprehensive historical analysis below, however, reveals that current war
powers practices are, in fact, more compatible with the Framers' original
design than these scholars have suspected.
II
THE BRITISH LEGACY
This Part locates the Constitution's textual allocation of war powers
within the legal, political, and institutional history of the eighteenth
century. It seeks a wider lens than the traditional focus on the legislative
history of the War Powers Clause and on a few statements by individual
Framers. It also seeks to advance our understanding of war powers by
establishing the war clauses' relationship to the overall structure of the
Constitution and the fabric of history and politics that gave meaning to
the Constitution's sparse language. Examining how the executive and
legislative branches shared war powers in Great Britain, the colonies, and
the newly independent states will provide the context for understanding
what the Framers hoped to accomplish in Philadelphia in 1787. If the
Framers intended change, we may better appreciate its extent through
careful study of the previous state of affairs. If the delegates to the
Constitutional and ratifying conventions sought to continue the working
political system they inherited, then the outlines of British and early
154. However, such a statute might be unconstitutional, because it would seek to extend the
jurisdiction beyond the limits of Article III. Cf.Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
(Congress cannot extend standing beyond limits of Article III). As originally understood, the
Constitution does not contemplate judicial interference in inter-branch disputes over war powers. See
infra text accompanying notes 548-559.
155. ELy, supranote 1, at 135.
156. KOH, supranote 1, at 182.
157. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821).
1996]
THE CONTINUATION OFPOLITICS
American practice will help us to define the arrangements created by the
Constitution.
Examining the Constitution's antecedents reveals a war-making
framework that contrasts sharply with the theories of today's scholarship. The relationships between the executive and legislative branches
in Great Britain, the colonies, and the states during the Revolution and
under the Articles of Confederation are the progenitors of today's war
powers practice. In these earlier contexts, the legislative branch did play
an important role in the decision to go to war, but not because it had the
power to "authorize" war in the way that Congress authorizes, for instance, highway construction. Rather, legislatures of the eighteenth
century controlled executive actions leading to war by using their appropriations power. The Constitution's provisions did not break with
the tradition of their English, state, and revolutionary predecessors, but
instead followed in their footsteps. 5 '
Before interpreting the events surrounding the ratification of the
Declare War Clause, we first must explore the historical and legal background of war powers in the Anglo-American world of the seventeenth
and eighteenth centuries. The English Constitution provides the starting
point, for the Framers were Englishmen who consistently referred to the
system of their former nation when they designed their own government. American practice during and after the Revolutionary War under
the Continental Congress, the state governments, and the Articles of
Confederation also provides a useful understanding of the genesis of the
war clauses. Only against this background of history and tradition can
we comprehend the Framers' design and the current debate over the
meaning of the war clauses.
A. English Constitutionalismand War
In adopting a new Constitution, the Framers consciously acted in
the context of the British Constitution, under which they had lived as
English colonists. As Bernard Bailyn has so elegantly shown, the
American Revolution was in part an effort by the revolutionaries to
reclaim their rights as Englishmen from a King and Parliament that had
denied them their full political and civil privileges." 9 Although they
threw off the weight of British political control, the Framers did not
reject immediately the British system of government.
The British
158. In this regard, this section of the Article is consistent with the work of Professors RavenHansen and Banks. See WLLIAr C. BANKS & PETER RAVEN-HANSEN, NATIONAL SECURITY LAW
AND THE POWER OF THE PURSE
(1994). But whereas they argue that the power of the purse is a
permissible means for the legislature to participate in foreign affairs, this Article suggests that the
spending power may be the only means for legislative control over war.
159. See generally BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN
REVOLUTION
(1967).
CALIFORNIA LAW REVIEW
[Vol. 84:167
Constitution provided a storehouse of political and legal concepts that
the Framers drew upon in constructing their own framework of government. Terms such as "Commander in Chief,....
executive Power,"
"declare War," "granting Letters of Marque and Reprisal," or "raise
and support Armies," have roots in the history of the British
Constitution. Studying British constitutional history will clarify their
meaning. Furthermore, the political history tracing the interaction
between the Crown and Parliament will provide insight as to the type of
relationship the Framers expected the President and Congress to share.
Unlike our written Constitution, the British Constitution refers to
unwritten principles, expressed sometimes by statute or by accepted
practice, that define the relationship between the executive and the legislature and between the government and the People. By the late eighteenth century, the British Constitution had undergone more than a
century of struggle and change over the allocation of authority between
Crown and Parliament, especially in the area of foreign affairs and war.
Thus, discovering the structure of war powers established by the Framers
requires us to review English constitutional history from the Stuarts
through the Glorious Revolution of 1688. Our inquiry takes two approaches: first, it examines the eighteenth-century American's understanding of the British Constitution; and second, it discusses the history
of the political struggle between the King and Parliament, a story familiar to any educated colonist and revolutionary.
As this bifurcated analysis suggests, the British Constitution provided two important precedents and models for the Framers. First, it set
out the formal roles that the Crown and Parliament were to play in war.
In short, the English system gave the executive leadership in the initiation and conduct of war, while the legislature was relegated primarily to
funding the wars and impeaching ministers. Second, within these
boundaries, the British Constitution provided the two branches with substantial leeway to shape a dense network of "subconstitutional" understandings, relationships, and practices governing war powers. This freefire zone permitted Parliament to gain a substantial role in decisions on
war, even though its formal powers extended only to appropriations.
Both of these elements-formal power and real-life practice-would
make a substantial impression on England's colonists in North America.
1. The Allocation of War Powers in the English Constitutionand
Eighteenth-Century Political Thought
An examination of the theoretical approach to war powers by the
political thinkers of the eighteenth century is a useful starting point. In
setting up their system of government, the Framers often directly relied
upon political theory. They turned to such thinkers for both an ideal
1996]
THE CONTINUATION OFPOLITICS
model of government and for an understanding of the Anglo-American
past.1 °0 An examination of these works will show that, under the political
theory of the day, certain types of war functions were considered to be
best exercised by particular branches of government. The executive
power was viewed as the most effective part of the government for
commencing and waging war, while the legislature was seen as best
suited for handling fiscal affairs.
On questions concerning government and law, eighteenth-century
Americans turned to three writers in particular-John Locke, William
Although their ideas were filtered
Blackstone, and Montesquieu.
through the lens of English "country" opposition ideology, 6 ' their descriptions of the English Constitution guided the Framers' approach to
government power, separation of powers, and war powers. As the
Framers sought to establish the separation of powers in the federal
Constitution, it was only natural that they referred to the political theorists of their day.
Locke divided the powers of government into three
types: legislative, executive, and federative. Within the legislative sphere
rested the "power in every commonwealth" to promulgate the laws,
while the executive, a "power always in being," bore the responsibility
to "see to the execution of the laws that are made."'62 Locke defines
the federative power as "contain[ing] the power of war and peace,
leagues and alliances, and all the transactions with all persons and communities without the commonwealth,"'6 which we today think of as the
foreign relations power. He decided that the executive and federative
power were "really distinct in themselves" because the former concerned itself with "the execution of the municipal laws of the society
within itself," while the latter pertained to "the management of the se"[Y]et," Locke concurity and interest of the public without."'' 1
cluded, "they are always almost united" because the federative power
"is much less capable to be directed by antecedent, standing, positive
laws, than the executive." 65 To separate the two powers would lead to
"disorder and ruin," Locke predicted, because "the force of the public
160. It is not unreasonable to assume that the thoughts of these writers on war would influence
the thoughts of the Framers, as they did in so many other areas of political thought. See John C. Yoo,
Note, Marshall'sPlan: The Early Supreme Court and Statutory Interpretation,101 YALE U. 1607,
1609-10 (1992).
161. English country ideology, developed by critics of the Crown in the early 18th century,
asserted that the King and Parliament had become corrupted by wealth and ambition and no longer
represented the people. See BAILYN, supranote 159, at 34-54.
162.
JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT §§ 143-45
1966).
163.
Id. § 146.
164.
Id. § 147.
165.
Id.
(J.w. Gough ed.,
3d ed.
CALIFORNIA LAW REVIEW
[Vol. 84:167
would be under different commands."'" Yet the powers were distinct,
because managing foreign affairs did not involve the execution of laws,
but rather the performance of the different function of conducting international relations.167
In addition to these powers, Locke's executive also wielded the
"prerogative." Locke argued that the executive employed the prerogative in cases of emergency "to act according to discretion for the
public good, without the prescription of the law, and sometimes even
against it.' 6 "Many things there are which the law can by no means
provide for, and those must necessarily be left to the discretion of him
that has the executive power in his hands, to be ordered by him as the
public good and advantage shall require."69 Such power rested in the
hands of the executive, Locke believed, because the legislature was
sometimes too numerous or slow to act or could not anticipate unforeseen situations. 17 Further, in Locke's eyes, the King must have the prerogative because he represented the interests of the Community.
Although potentially of great benefit to the Community, executive prerogative raised the "old question" of how to judge when the prerogative came into conflict with the Legislative power.'
In such disputes,
Locke wrote, "there can be no judge on earth.' ' 7 Thus, when the executive and legislature oppose one another, the branches either must
work out a political compromise, or they must "appeal to heaven."'7
Locke's articulation of the separation of powers as the classification and allocation of powers by function was not the only approach. Some early eighteenth-century thinkers derived a doctrine of
checks and balances that began with ideas of mixed government.'74 The
Parliament and King would use their powers both to pursue the People's
interests and to preserve themselves against the other branch's
encroachments. By the 1730s, these theories of mixed government had
begun to eclipse purely functional accounts of the separation of
powers. 75
166.
167.
Id § 148.
This point is well made in MJ.C. VILE, CONSTITUTIONALISM AND THE SEPARATION OF
POWERS 60-61 (1967).
168.
169.
170.
171.
172.
173.
LOCKE, supra note 162, § 160.
I § 159.
Id. § 160.
Id. § 168.
Id.
Id.
174.
See W.B. GWYN, THE MEANING OF THE SEPARATION OF POWERS: AN ANALYSIS OF THE
82-99, 13841(1965).
175. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 151
(1969).
DOCTRINE FROM ITS ORIGIN TO THE ADOPTION OF THE UNITED STATES CONSTITUTION
THE CONTINUATION OFPOLITICS
1996]
The Framers received these theories through Montesquieu's The
Spirit of Laws. Montesquieu accepted a functional approach to the
separation of powers, but he also saw the need for checks and balances
to allow the system to work. 176 Following Locke's distinction between
the legislative, federative, and executive powers, Montesquieu divined
"three sorts of power: the legislative; the executive in respect to things
dependent on the law of nations; and the executive, in regard to things
that depend on the civil laws.'"' 7 The last of the three would be, in part,
what we understand as the judicial power. The second is a vision of an
executive power wholly rooted in war and foreign affairs: "By the
[executive power, the prince or magistrate] makes peace or war, sends or
receives embassies, establishes the public security, and provides against
invasions. '"7
Although Montesquieu separated the functions of government into
different branches, he also sought to give the executive and legislature
controls over one another. In military affairs, Montesquieu argued that
the executive should possess exclusive control over the army: "once an
army is established, it ought not to depend immediately on the legislative, but on the executive power; and this from the very nature of the
thing; its business consisting more in action than in deliberation.' 7 9
The legislature did, however, exercise two checks on executive authority.
First, if in disagreement with the executive the legislature could terminate the funding for the military. Wrote Montesquieu in praise of the
British practice of annually voting military appropriations:
If the legislative power was to settle the subsidies, not from
year to year, but for ever, it would run the risk of losing its liberty, because the executive power would no longer be dependent; and when once it was possessed of such a perpetual right, it
would be a matter of indifference, whether it held it of itself, or
of another. The same may be said, if it should come to a resolution of instrusting, not an annual, but a perpetual command of
the sea and land forces to the executive power.'
Second, the legislature could check the executive's military policies by
terminating authorization for the army: "The legislative power should
have a right to disband [a standing army] as soon as it pleased."''
176.
177.
1977).
178.
See GWYN, supranote 174, at 111-13; VILE, supra note 167, at 90.
MONTESQUIEU,
THE
SPIRIT OF LAWS
bk. XI, ch. 6, para. 1 (David W. Carrithers ed.,
Id. para. 2.
179. Id. para. 62.
180. Id. para. 60 (footnote omitted). However, Montesquieu errs by suggesting that Parliament
voted the executive the authority of "command" annually. After the Restoration, Parliament actually
acknowledged that it could not interfere with the Crown's authority as Commander in Chief. See
infra text accompanying notes 230-233.
181. MONTESQUIEU, supra note 177, para. 61.
CALIFORNIA LAW REVIEW
[Vol. 84:167
Thus, in discussing war, as in separation of powers theory generally,
Montesquieu carried Locke further by marrying functional separation
with checks and balances. Like Locke, Montesquieu saw no role for the
judiciary in overseeing this self-regulating system of executivelegislative relations.'
These thoughts were reinforced in the minds of the Framers by
Blackstone's Commentaries on the Laws of England, with which they
were intimately familiar.'83
Blackstone incorporated Locke and
Montesquieu's theories on the separation of powers and the nature of
the executive prerogative into a system of constitutional law. Like
Locke, Blackstone defined the royal prerogative as that "discretionary
power of acting for the public good."'" As to the prerogative's limits,
he observed that if it "be abused to the public detriment, such prerogative is exerted in an unconstitutional manner."'' 5 Blackstone had a
narrower view of the prerogative than Locke. Locke conceived of the
prerogative as doing good without or in violation of the law, while
Blackstone envisioned executive discretion as operating only when "the
positive laws are silent."'86 Nonetheless, both English writers conceived
of a constitutional environment that did not attempt to divide government power among the branches by employing fixed lines. Neither
thinker appears to have believed that judicial intervention was necessary
to regulate the system of checks and balances.
Providing a broad catalogue of executive power and duties, the
Commentaries conclude that the power over foreign relations properly
belongs to the executive. Such authority fell to the King both because
he serves as the "delegate or representative of his people,"'8 7 and because "[i]t is impossible that the individuals of a state, in their collective
capacity, can transact the affairs of that state with another community
equally numerous as themselves."' 88 According to Blackstone, "[w]hat
is done by the royal authority, with regard to foreign powers, is the act
of the whole nation: what is done without the king's concurrence is the
act only of private men.""9' ' Blackstone's reasoning led to the conclusion that the King has the sole power to make treaties, for "it is by the
law of nations essential to the goodness of a league, that it be made by
the sovereign power; and then it is binding upon the whole commu182. See VILE, supra note 167, at 93.
183. See Missouri v. Jenkins, 115 S. Ct. 2038, 2068-69 (1995) (Thomas, J., concurring); Yoo,
supranote 160, at 1609-12; see also Wood, supra note 175.
184. 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *244.
185. Id.
186. Id.
187. Id. at *245.
188. Id.
189. Id.
19961
THE CONTINUATION OFPOLITICS
nity: and in England the sovereign power, quoad hoc, is vested in the
person of the king."'"
Blackstone envisioned an even more absolute power for the executive during wartime. The English jurist defended the King's powers in
matters of peace and war on international and natural law principles,
rather than on history and tradition:
[The king has also the sole prerogative of making war and
peace. For it is held by all the writers on the law of nature and
nations, that the right of making war, which by nature subsisted
in every individual, is given up by all private persons that enter
into society, and is vested in the sovereign power: and this right
is given up not only by individuals, but even by the [e]ntire
body of people, that are under the dominion of a sovereign. It
would indeed be extremely improper, that any number of subjects should have the power of binding the supreme magistrate,
and putting him against his will in a state of war. 191
Primacy in making war and peace required that the executive possess
the lion's share of the war powers. Thus, Blackstone states that the King
is the "generalissimo, or the first in military command, within the kingdom." 92 As with the treaty power, this aspect of the war power devolves
to the King because of his role as the sovereign representative and protector of the People and because "united strength in the best and most
effectual manner" is exercised by a monarch. 9 3 His capacity as "general of the kingdom" also gives the King "the sole power of raising
and regulating fleets and armies."' 9' On this point Blackstone went into
something of a frenzy, perhaps due to the memories of Parliament's attempt during the Civil Wars to wrest military control from the King.
Military command, Blackstone claims, "ever was and is the undoubted
right of his majesty, and his royal predecessors," and completely outside the jurisdiction of Parliament. 95
Another aspect of the executive's prerogative in foreign affairs was
the power to declare war. Because the Declare War Clause has played
such a pivotal role in the war powers debate, a separate section that follows discusses Blackstone's understanding of the declare-war power in
the larger context of eighteenth-century international law and legal theory.
196
190.
191.
192.
193.
Id. at *249 (footnote omitted).
Id.
Id. at *254.
Id.
194.
Id.
195.
Id.
196.
See infra text accompanying notes 200-207.
CALIFORNIA LAW REVIEW
[Vol. 84:167
In the face of such absolute royal prerogative, Blackstone left little
to Parliament in war and foreign affairs. He acknowledged Parliament's
dominant role in domestic legislation. Parliament has the "sovereign
and uncontrol[l]able authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal,
civil, military, maritime, or criminal."' 97 Moreover, only Parliament can
approve the imposition of taxes, which are needed for funding and
supplying the army. In terms of explicit foreign relations powers,
Blackstone appeared to permit Parliament only the tool of impeachment, which it could use after the King and his ministers had entered
into an unwise treaty or war. Thus, "the constitution... hath here interposed a check" on the treaty power, because Parliament could impeach "ministers [who as from criminal motives] advise or conclude
any treaty, which shall afterwards be judged to derogate from the
honour and interest of the nation."' 98 Likewise, the Crown's ministers
would be restrained in exercising the war power by "the same check of
parliamentary impeachment, for improper or inglorious conduct, in
beginning, conducting, or concluding a national war." 199 Unlike our
modern system, then, the British Constitution of the mid-eighteenth
century, according to Blackstone, explicitly provided for legislative
influence in war and foreign affairs primarily by giving Parliament the
power to punish Crown ministers for failed enterprises. It also implicitly
recognized Parliament's plenary authority over the purse.
2. The Declare-WarPower in the English Constitutionand
Eighteenth-Century Political Thought
As we have seen, critics of presidential war-making rely heavily on
the Constitution's allocation of the power to "declare war" to
Congress. These critics, however, have misinterpreted the meaning of a
declaration of war. Interpreting "declare" war to mean "authorize" or
"commence" is a twentieth-century construct inconsistent with the
eighteenth-century understanding of the phrase. This Section provides
an overview of the theories that would have been familiar to the Framers,
including those of Blackstone, Grotius, and Vattel. Examination of
these sources demonstrates that a declaration of war was significant for
its juridical purposes-for altering the formal legal status between
nations-but not for the domestic constitutional question of commencing hostilities.
197.
198.
199.
Id. at *156.
Id. at *249.
Id. at *250.
1996]
THE CONTINUATION OF POLITICS
Under Blackstone's version of the British Constitution, the
monarch did not need to declare war to begin hostilities against another
nationY°° Such a requirement would have served little purpose, in light
of the Crown's other prerogatives in the field of war. According to
Blackstone, the declaration of war plays two roles: it protects British
citizens by notifying other nations that the citizens' hostile actions have
received state approval, and it serves to legally bind the People to the
King's decision to wage war.
[The reason] why according to the law of nations a denunciation
of war ought always to precede the actual commencement of
hostilities, is not so much that the enemy may be put upon his
guard, (which is matter rather of magnanimity than right) but
that it may be certainly clear that the war is not undertaken by
private persons, but by the will of the whole community; whose
right of willing is in this case transferred to the supreme magistrate by the fundamental laws of society. So that, in order to
make a war completely effectual, it is necessary with us in
England that it be publicly declared and duly proclaimed by the
king's authority; and, then, all parts of both the contending
nations, from the highest to the lowest, are bound by it.210
A declaration of war only perfected, or made "completely effectual,"
hostilities between two nations, which otherwise could take any form that
constitutes an "incomplete state of hostilities." '
When the British
monarch exercised his sole authority on questions of war and peace, he
could issue a declaration of war either before or after "the actual commencement of hostilities." Although part of the war powers, the
authority to declare war was not necessary to begin or to conduct hostilities.
From a legal perspective, the declaration performed an important
function in distinguishing between limited hostilities and an all-out conflict. It was clearly understood in the eighteenth century that a
"declared" war was only the ultimate state in a gradually ascending
scale of hostilities between nations. For example, Blackstone described
letters of marque and reprisal as creating "only an incomplete state of
hostilities" that could eventually produce "a formal denunciation of
war." '
Any unauthorized hostilities committed by private citizens,
200. For example, Blackstone states that the King shall have the authority to grant letters of
marque and reprisal, which were a limited form of naval warmaking that occured in the absence of a
declaration of war. See infra text accompanying notes 203-206.
201. 1 BLACKSTONE, supra note 184, at *249-50 (emphasis added). The term "denunciation"
had a meaning equivalent to what we understand as a "declaration."
202. Id. at *250. In 1800, the Supreme Court approved this distinction between a "perfect" war,
legally perfected by a declaration of war, and an "imperfect" war. See Bas v. Tingy, 4 U.S. (4
Dall.) 37, 39-40 (1800).
203. 1 BLACKSTONE, supra note 184, at *250.
CALIFORNIA LAW REVIEW
[Vol. 84:167
therefore, would not constitute war, but would be the actions of "pirates
and robbers."'" °
Blackstone, however, recognized that a nation could authorize private citizens to wage war against another state. Hence Blackstone described the executive's authority to issue letters of marque and reprisal
as "nearly related to, and plainly derived from, [the prerogative] of
making war."" Recognized by the law of nations, such letters authorized their bearers to "seise the bodies or goods of the subjects of the
offending state" to satisfy some oppression or injury received earlier2 ---a particularly violent form of international quasi-in-rem jurisdiction, as it were. But the plaintiffs received formal protection from
piracy or robbery laws because the letter of marque and reprisal gave
their conduct the sanction of state approval.
In describing the various forms of international hostilities,
Blackstone drew on the writings of international law scholars of the
seventeenth and eighteenth centuries. For example, Blackstone's description of a declaration of war borrowed liberally from international
law treatises, often without citation. International law scholars agreed
that a declaration of war was unnecessary either to begin or to wage a
war, but rather was a courtesy to the enemy. Declarations derived from
the ancient practice of sending heralds to the enemy capital to announce
that a state of war existed between the two nations.'
According to
Grotius, a declaration of war notified the enemy of the injury suffered
and specified the conditions for redress or surrender.'
A declaration
also served notice on allies of the enemy that they might become accessories to the war. 9 A declaration constituted something of a complaint
in the international dispute resolution process of the seventeenth and
eighteenth centuries.
According to these scholars, a declaration of war played a dual legal purpose. First, it notified the enemy that a state of war existed between them. If a nation warned its enemy of future hostilities, its later
actions would receive the protection of international law.21 A declaration announced that hostile actions by its soldiers were taken under national aegis, and thus. did not constitute piracy or robbery. Grotius
commented:
204.
Id. at *249.
205.
206.
207.
208.
Id. at *250.
Id.
See 2 EMMERICH DE VATrEL, THE LAW OF NATIONS 21-22 (trans. 1759).
3 GRoTIus, THE RIGHTS OF WAR AND PEACE ch. III, pt. VII (A.C. Campbell trans., 1901).
209. Grotius and Vattel drew their conclusions from the history of the Romans, who sent
ambassadors to declare their intent to go to war to redress an injury. See, e.g., 2 VATrEL, supra note
207, at 21-22.
210. See 3 GROTIUS, supra note 208, at ch. II, pt. VI.
1996]
THE CONTINUATION OF POLITICS
[A] more satisfactory reason [for requiring declarations] may be
found in the necessity that it should be known for certain, that a
war is not the private undertaking of bold adventurers, but made
and sanctioned by the public and sovereign authority on both
sides; so that it is attended with the effects of binding all the
subjects of the respective states . ... ""'
Given this purpose, a declaration would have little use unless the warring
nation announced the inauguration of hostilities to the other state and to
its own citizens. According to Vattel, "[t]he declaration of war must be
known to the state against whom it is made. This is all which the natural
law of nations requires." 2 ' Once the declaration issued, the warring
nations lawfully could attack the other's citizens and territory and seize
the contraband goods of neutrals. Vattel remarked: "Without such a
public declaration of war, it would be difficult to settle in a treaty of
peace, those acts which are to be accounted the effects of the war, and
those which each nation may consider as wrongs, for obtaining reparations. '213
Second, declarations played a domestic legal role by informing
citizens of an alteration in their legal rights and status. Vattel wrote:
It is necessary for a nation to publish the declaration of war for
the instruction and direction of its own subjects, in order to fix
the date of the rights belonging to them from the moment of this
declaration, and relatively to certain effects which the voluntary
law of nations attributes to a war in form.214
Declarations instructed citizens of their new relationship with the enemy
state, and informed them that they could take hostile actions against the
enemy without fear of sanction. With a declaration of war in hand, citizens of the contending nations could "annoy" the persons or property
of the enemy and lawfully keep captured vessels. Grotius, for example,
devoted one of the chapters of his De Jure Belli ac Pacis to "On the
Right of Killing an Enemy in Lawful War and Committing Other Acts
'
According to Grotius, a citizen of a nation formally at
of Hostility."215
war if captured "cannot be treated as a robber, malefactor, or murderer.., for being found in arms. 216
Thus, a declaration of war served the purpose of notifying the enemy, allies, neutrals, and one's own citizens of a change in the state of
relations between one nation and another. In none of these situations
did a declaration of war serve as a vehicle for domestically deciding on
211.
212.
213.
214.
3 id. pt. XI.
2 VATrEL, supra note 207, at 22.
2 id. at 23.
2 id
215.
3 GRottus, supra note 208, at ch. IV.
216.
3 id. pt. III.
CALIFORNIA LAW REVIEW
[Vol. 84:167
or authorizing a war. The seventeenth and eighteenth-century writers
on international law never implied that a nation had to issue a declaration of war before waging hostilities. As we shall see, hostilities in the
absence of a declaration of war were the norm, rather than the exception, of seventeenth and eighteenth-century Anglo-American history."
While attacking without a declaration might violate international law, the
treatise writers did not claim such action would violate domestic law.
3. The Lessons of British History: The Sinews of War
As citizens of the British empire, the Framers not only operated in
the intellectual context of eighteenth-century British and international
legal thought, but they also were clearly aware of recent British history.
In thinking on and debating questions of constitutional law, the Framers
constantly referred to recent British history, which was, after all, their
history as well. This was no less true of war powers than it was, for
example, of the freedom of the press."8 In this regard, Blackstone's
description can provide only an incomplete glimpse of the war power in
eighteenth-century Britain and thus of the Framers' understanding of
the war power. Even though Sir William Holdsworth, the British legal
historian, declares that Blackstone's Commentaries "is by far the best
account of the position of the prerogative in the public law of the
eighteenth century," he notes that "his account is only a sketch; and it
fails to take account of the manner in which, even when he was writing,
some parts of the prerogative were being enlarged, others curtailed, and
others rendered more precise."219 Further, Blackstone limited his discussion to the formal legal arrangement of the war power, which tended
to overemphasize the power of the executive. Missing was any description of the working relationships and political procedures created within
the formal boundaries of the constitution. Presently, this Article will
attempt to fill in that gap.
Examining how the political system of war powers actually operated will provide vital context for our inquiry, because the Framers were
as well aware of British political history as they were of Blackstone's
Commentaries. In adopting elements of the British Constitution's
checks and balances, the Framers reasonably could expect those elements to produce a relationship between the President and Congress
similar to the one that they thought existed between Crown and
Parliament. Conversely, it is not unreasonable to construe the Framers'
rejection of a specific distribution of power in the British Constitution as
217. See infra text accompanying notes 235-238.
218. See McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511, 1525-30 (1995) (Thomas, J.,
concurring) (reviewing history of Press Clause).
219. 10 WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 340-41 (1938).
1996]
THE CONTINUATION OF POLITICS
a corresponding renunciation of that aspect of the British political
system.
During the seventeenth century, the British Constitution underwent
a series of crises revolving around the military and the war power.M° In
a series of struggles that began with the Stuarts in the 1620s, continued
into the Protectorate of Cromwell and the Restoration, and stabilized
with the Glorious Revolution of 1688, the Crown and Parliament fought
for the upper hand in foreign affairs. From the ascension of James I to
the beheading of his son, Charles I, the executive and legislature specifically struggled over the issue of funding. The Protectorate saw a
period of formal parliamentary supremacy in war powers, but the
Restoration of the Stuarts in 1660 returned to the King his formal
powers, while Parliament retained its sole control over appropriations.
Parliament's funding authority gave it a powerful voice in foreign
affairs, one that it enhanced in the Glorious Revolution by placing
restrictions on the King's ability to raise armies in peacetime. By the
dawn of the eighteenth century, the conflicts between Crown and
Parliament yielded a stable constitutional system which gave the executive discretion in matters of war, with the legislature playing a
substantial role due to its control over appropriations.
When James I became the first Stuart monarch in 1603, tradition
had given the King the power to make war and peace, to conclude treaties, and to control the army and navy. However, Parliament's power
over the purse rendered the King's prerogative to raise armies and navies an empty one, unless the Crown could find other sources of funding. Parliament's "exclusive control over finance enabled it to criticize
all the acts of the executive government, to stop projects of which it disapproved, to force the executive to adopt policies of which it approved,
220.
STATE,
See generally JOHN BREWER, THE SINEWS OF POWER: WAR, MONEY AND THE ENGLISH
1688-1783 (1989). Uncited works which have been of some assistance in this Section include
FRANCIS R. FLOURNOY, PARLIAMENT AND WAR: THE RELATION OF THE BRITISH PARLIAMENT TO
(1927);
111 (1977);
THE ADMINISTRATION OF FOREIGN POLICY IN CONNECTION WITH THE INITIATION OF WAR
HENRY HORWITZ, PARLIAMENT,
POLICY AND POLITICS IN THE REIGN OF WILLIAM
COLIN R. LOVELL, ENGLISH CONSTITUTIONAL AND LEGAL HISTORY (1962); RICHARD MIDDLETON,
THE BELLS OF VICTORY: THE PITT-NEWCASTLE MINISTRY AND THE CONDUCT OF THE SEVEN
YEARS' WAR, 1757-1762 (1985); MARIE PETERS, PITT AND POPULARITY: THE PATRIOT MINISTER
AND LONDON OPINION DURING THE SEVEN YEARS' WAR (1980); 4 MARK A. THOMSON, A
CONSTITUTIONAL HISTORY OF ENGLAND (1938); J.R. WESTERN, THE ENGLISH MILITIA IN THE
EIGHTEENTH CENTURY: THE STORY OF A POLITICAL ISSUE 1660-1802 (1965); Stephen B. Baxter,
The Conduct of the Seven Years War, in ENGLAND'S RISE TO GREATNESS, 1660-1763, at 323 (Stephen
B. Baxter ed., 1983); Jeremy Black, The Revolution and the Development of English Foreign Policy,
in BY FORCE OR BY DEFAULT?: THE REVOLUTION OF 1688-1689, at 135 (Eveline Cruickshanks ed.,
1989); Jennifer Carter, The Revolution and the Constitution, in BRITAIN AFTER THE GLORIOUS
REVOLUTION 1689-1714, at 39 (Geoffrey Holmes ed., 1969); G.C. Gibbs, Parliamentand Foreign
Policy in the Age of Stanhope and Walpole, 77 ENG. HISr. REV. 18 (1962); Edward R. Turner,
Parliamentand ForeignAffairs, 1603-1760, 34 ENG. HisT.REV. 172 (1919).
CALIFORNIA LAW REVIEW
[Vol. 84:167
and to supervise the methods adopted to carry them out." '' James I,
however, sought to follow an independent foreign policy without interference from Parliament.
To effectuate such a policy, James I followed the strategy of some
of his predecessors and preferred to rely on the Crown's revenues.
Nonetheless, disputes over the Crown's peacetime revenues, and, more
importantly, the onset of the costly Thirty Years' War on the Continent,
forced James I to seek parliamentary support. In 1621 and again in
1624, Parliament effectively forestalled James I's plans to fight in the
German wars by approving only meager funds for the army. Further,
Parliament encouraged an unwilling James I to break England's treaties
and initiate hostilities against Spain by voting funds contingent only for
such a war.'m James I broke off relations with Spain and a naval war
began in earnest in 1624, even though no declaration of war had been
issued. Parliament supported this undeclared war with funds, even
though England did not officially declare war until September of
1625.m
Cooperation broke down, however, when Parliament sought to intervene in the military conduct of the war by impeaching ministers responsible for reverses on the field of battle. Charles I's ascension to the
throne in 1625 only led to further deterioration in relations between the
King and Parliament. Like his father, Charles sought to avoid parliamentary involvement in foreign affairs by seeking independent funding
sources for his policies. By 1629, Charles had dissolved Parliament and
was raising funds by selling Crown lands, by imposing a "ship-money"
levy on maritime communities to pay for the navy, and by requiring
forced loans to the Crown.?
After Parliament won the subsequent Civil War in 1647 against the
Crown, the revolutionaries sought to institutionalize legislative participation in matters of war and peace. Proposals for governmental reform suggested that the constitution provide for a King's Council which
221. 10 HOLDSWORTH, supranote 219, at 585.
222. See Subsidy Act, 1624, reprintedin THE STUART CONSTITUTION 1603-1688, at 76-77 (J.P.
Kenyon ed., 1966) [hereinafter THE STUART CONSTITUTION]; see also DAVID L KEIR, THE
CONSTITUTIONAL HISTORY OF MODERN BRITAIN SINCE 1485, at 187-88 (9th ed. 1969).
223. See KEIR, supranote 222, at 188-89; THE STUART CONSTITUTION, supra note 222, at 58.
224. A merchant challenged the Crown's ship-money tax, arguing that it lacked parliamentary
approval. But unlike our Supreme Court in Youngstown, the majority of the judges confirmed the
King's power. They reaffirmed the King's sole executive authority "to make war and peace" as well
as to impose taxes without the common consent of Parliament. See BERNARD SCHWARTZ, THE
ROOTS OF FREEDOM: A CONSTITUTIONAL HISTORY OF ENGLAND 148-49 (1967). Charles I gave up
the practice of obtaining forced loans when he called Parliament into session in 1628 to obtain war
funds. In exchange for the funds, the King accepted the Petition of Right, which condemned the
practice.
PETITION OF RIGHT (1628), reprinted in THOMAS P. TASWELL-LANGMEAD, ENGLISH
CONSTITUTIONAL HISTORY FROM THE TEUTONIC CONQUEST TO THE PRESENT TIME
ed., 9th ed. 1929).
501 (A.L. Poole
1996]
THE CONTINUATION OF POLITICS
would decide on war only with "the Advice and Consent of
Parliament," or that the government vest all legislative authority in a
new national assembly that would exercise all powers of state, including
that of "making of War and Peace."'
Even though the subsequent beheading of Charles I left all executive powers in the hands of Cromwell
the "Lord Protector," Parliament still continued to propose written constitutions which required legislative approval in decisions concerning
6
foreign affairs and war.1
The Instrument of Government, which in 1653 designated
Cromwell as the Lord Protector and established a council of advisers to
hold office for a permanent term, gave the executive the sole authority
to communicate with foreign nations. But the Instrument also required
him to seek the "consent of the major part of the Council" on matters
of war and peace. 7 The Instrument also constrained the executive's
control over the military forces by permitting the Lord Protector to
"dispose and order" the militia, army, and navy only "by consent of
Parliament," and when Parliament was not sitting, by a majority vote of
the Council." The Instrument made clear that the executive could not
raise money to pay for "the present wars" without the approval of
Parliament, except in emergency. When even this Constitution proved
unworkable, Parliament then wrote another framework of government,
The Humble Petition and Advice of 1657, which reproduced the mechanism of joint control over the armed forces. 9 Although the Framers
were well aware of this history, they never mentioned these examples
when allocating war powers in our Constitution.
The restoration of the Stuarts in 1660 represented a rejection of the
English experiment with republican government. Charles II's return
also signaled the restoration of the Crown's prerogatives over war and
peace, over the conduct of diplomatic relations, and over the making of
treaties.2?0 Further, Parliament passed a statute returning to the King
"the sole supreme government, command and disposition of the militia
and of all forces" and abjuring Parliament's right to the same.23
However, if the Civil Wars had ended the debate over control over
the armed forces, they also' had locked into place Parliament's sole
225.
226.
See Bestor, supra note 2, at 551.
The practical effect of these suggestions would have been almost nil, since the Parliament
by this time had been purged of all but the most radical supporters of Cromwell.
227. THE INSTRUMENT OF GOVERNMENT (1653), reprinted in THE STUART
CONSTITUTION,
supra note 222, at 342.
228. Id.
229. See THE HUMBLE PETITION AND ADVICE (1657), reprinted in THE STUART
CONSTrrUTION, supranote 222, at 350, 354.
230. KEIR, supranote 222, at 236.
231. An Act Declaring the Sole Right of the Militia to be in the King, 1661, reprinted in TIE
STUART CONSTITUTION, supranote 222, at 374.
CALIFORNIA LAW REVIEW
[Vol. 84:167
control over the funding of national policies. Instead of voting lump
sums to the Crown, Parliament began to appropriate funds specifically
for the army and to forbid the transfer of money from other accounts
for military purposes. 2 It was this balance between executive initiative
and planning and legislative control of appropriations that would characterize British foreign relations for at least another century.?23 Again,
American colonists were familiar with this history and understood the
resulting allocation of power.
Inparticular, the Framers would have taken note of the ample opportunities available to Parliament to use its financial power to participate in the development of foreign policy. Consider that from 1660 to
1801 Britain seemed to be at war more often than it was not: 1665-67
(Second Anglo-Dutch War), 1672-74 (Third Anglo-Dutch War), 168997 (War of the Grand Alliance), 1702-13 (War of the Spanish Succession), 1718-20 (War of the Quadruple Alliance), 1739-48 (War of the
Austrian Succession), 1754-63 (Seven Years' War), 1775-83 (the
American Revolution), and 1793-1801 (War with revolutionary
France).? Continual war demanded continual funding, and important
Members of Parliament used their voting power over military appropriations to seek a cooperative arrangement with the Crown in the setting of foreign policy?135 Only when doubts arose about the Stuarts'
flirtations with Catholicism at home and abroad did politicians "seek to
use the opportunities that parliamentary control over war finance presented to curtail [the Crown's] power." 6
Although Parliament supported Charles II at the outset of his war
against the Dutch, it grew fearful when Charles II signed a treaty with
Catholic France to partition the Netherlands, and it used its fiscal powers
to force an end to the Dutch war. Parliament then took its own initiative
and voted supplies for a war against France in 1677 and 1678, in the
hopes that Charles II would adopt an explicit anti-French policy.
Parliament even threatened to cut off all funds for the military if the
King did not enter a treaty "against the growth and power of the French
king." 7 However, Charles II vigorously refused to allow "this fundamental power of making peace and war to be so far invaded."" 8
See J.S. OMOND, PARLIAMENT AND THE ARMY, 1642-1904, at 30-32 (1933).
See generally FREDERICK S. ALLEN, THE SUPREME COMMAND IN ENGLAND, 1640-1780
(1966); JEREMY BLACK, BRISH FOREIGN POLICY IN THE AGE OF WALPOLE 75-92 (1985).
234. JEREMY BLACK, A SYSTEM OF AMBITION?: BRITISH FOREIGN POLICY 1660-1793, at 18
(1991).
235. Id. at 19.
236. Id. For a more critical view of Parliament, see ALLEN, supranote 233, at 127-43 (accusing
Parliament of using its funding powers to usurp the "supreme command" over the military).
237. COMMONS ADDRESS (May 25, 1677), reprintedin THE STUART CONSTITUTION, supra note
222, at 399.
238. KING'S REPLY (May 28, 1677), reprintedin id. at 400-01.
232.
233.
1996]
THE CONTINUATION OF POLITICS
After the Glorious Revolution of 1688, Parliament's role, although
still rooted in its control over finances, extended beyond simply thwarting royal initiatives. The Bill of Rights, imposed upon William and
Mary in 1689 as the price for their throne, removed from the royal prerogative the power to raise and keep a standing army in peacetime. 9
Thereafter, the decision to raise a standing army required statutory
After 1688, Parliament provided authorization and
authorization.
funding through annual Mutiny Acts.2" Thus, Blackstone was only
partially correct when he wrote that the King had the prerogative to raise
and regulate armies and navies; the King could do so, but only with the
cooperation of Parliament.
Parliament's financial power had become so institutionalized and
accepted that it constituted a potential veto over decisions on war and
peace. In part, Parliament owed its continuing presence in foreign affairs to its own permanent presence in the British political system. As
part of the post-revolutionary settlement, the King no longer could rule
without calling the legislature into session at least once every three
years.2 4' Parliament became the forum where political groupsrepresenting both the Crown's ministers and various parties-sought to
define and present the national interests to domestic and international
audiences.242 As a historian of the period concludes, "[t]o this extent
the Glorious Revolution gave England and then Britain a parliamentary
foreign policy, a policy that was often expounded and debated in
Parliament for political reasons that were not related solely to
Parliament's fiscal powers."' 3 Or as a contemporary of the day argued
before the House of Commons in 1739, "according to the old maxim
of our Constitution, the king is invested with the sole power of making
peace and war; but from the late conduct of some gentlemen in this
House, I begin to doubt whether this ought to be allowed as a maxim in
our constitution." 244 The speaker, the Secretary of War, believed this to
be the case because "[t]here are some amongst us who, of late years,
have taken upon them to prescribe to his majesty not only when, but
how he is to make both peace and war."'24
239. See BILL OF RIGHTS (1689), reprinted in 1 SOURCES AND DoCUMENTS OF UNITED STATES
CONSTITUTIONS 134 (William F. Swindler ed., 1982).
240. See KIIR,supra note 222, at 268.
241. See Triennial Act, 1684 reprinted in E NEVILLE WILLIAMS, THE EIGHTEENTH-CENTURY
CONSTITUTION 1688-1815, at 49 (1960).
242. See BLACK, supra note 234, at 44.
243.
244.
245.
Id. at 46.
11 COBBETT'S
Id.
PARLIAMENTARY HISTORY OF ENGLAND
155 (1812).
CALIFORNIA LAW REVIEW
[Vol. 84:167
Parliament also influenced decisions on war and peace by use of its
impeachment powers.' If Parliament believed that the Crown had pursued an unwise foreign policy or war, it could accuse the prime minister
and other officials of a criminal offense as vague as that of derogating
from the dignity and interests of the nation. Parliament, for example,
impeached Charles U's ministers Clarendon in 1667 and Danby in
1678, because they engaged in an unsuccessful or unpopular foreign
policy-one, however, that wholly represented the wishes of the King.247
To be sure, Parliament could exercise this power only after the fact, but
it gave the Commons a voice in the selection of ministers and executive
policy, especially as the Crown came to adopt cabinet-style organization
after the turn of the century.24 Thus, by the middle of the eighteenth
century, the Crown had difficulty conducting policies in opposition to
the Commons, even though the King formally still retained the sole prerogative of selecting his advisers.' 9
4. The Lessons of British History: The Declarationof War
British practice also provides support for this Article's interpretation of the function of a declaration of war. In two of Britain's major
military engagements in the seventeenth and eighteenth centuries-the
entry into the Thirty Years War against Spain in 1624, and the struggle
with France during the Seven Years' War beginning in 1756-the King
did not declare war until more than a year after offensive operations had
begun.' 0 In fact, in the many wars fought after the Restoration (the
Second and Third Anglo-Dutch Wars, King William's war, the War of
the Spanish Succession, the War of the Austrian Succession, and the
Seven Years' War), England declared war only once before or at the
commencement of hostilities."5' This period also witnessed numerous
minor conflicts in which England never declared war at all.,,2 If the
British of the seventeenth and eighteenth centuries (which included the
246. See generally RAOUL BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS 7-102
(1973).
247. Clarendon presided over the Second Dutch War of 1665-67, which saw a Dutch fleet
blockade the Thames and bum the English fleet in the Medway. Parliament impeached Danby when
Montague, a member of Parliament and former ambassador to France, revealed in the
.Commons that Charles had offered to dissolve Parliament if Louis XIV of France paid him six million
francs (at a time when Parliament had voted funds for an anti-French policy). Dissatisfied with
Charles and Danby, Louis XIV had bribed Montague to disclose the information.
See 6
HOLDSWORTH,
248.
249.
250.
supranote 219, at 176-77, 184-85.
See generally Black, supra note 220.
See 10 HOLDSWORTH, supranote 219, at 591.
See THm STUART CONSTITUTION, supra note 222, at 58 (Thirty Years War); I JAMES
KENT, COMMENTARIES ON AMERICAN LAW 53-54 (2d ed. 1832) (Seven Years' War).
251. See 5 COBE'rT'S PARLIAMENTARY HISTORY OF ENGLAND 234-35 (1809) (declaration
beginning King William's War of 1689).
252. See generally J.F. MAURICE, HOSTILITIES
WITHOUT DECLARATION OF WAR
(1883).
1996]
THE CONTINUATION OF POLITICS
American colonists) believed a declaration of war played an authorizing
function for hostilities, they certainly failed to practice what they
preached.
The declarations of war published in the British colonies confirm
that the views of international legal scholars and the lessons of British
practice were understood throughout the Empire's possessions. These
declarations usually catalogued the offenses committed by the other
nation (usually France) in an effort to show that a state of war already
existed, with Britain's own declaration playing the happy role of merely
recognizing the ongoing state of hostilities. 3 For example, William and
Mary devoted most of their May 7, 1689 declaration of war against
France to a recitation of French actions-seizing English possessions in
the Americas, attacking English ships, persecuting English nationals in
France, and seeking to foment rebellion against the new monarchywhich had the effect of commencing the war between the two nations.'
The March 29, 1744 declaration against France similarly narrated a litany of French provocations and attacks on British possessions-going
so far as to describe in detail captured French documents ordering
commanders to attack British settlements in a time of peace, and a
French declaration of war against Britain and her allies-to show that
war already existed. 5 Britain's declaration of the Seven Years' War on
May 17, 1756, while giving the pretexts for the King's decision, char'' 6
acterized previous hostile actions by both nations as already a "war. 1
Underscoring their formal nature, all three declarations were devoted
toward describing the new legal status certain actions would gain during
wartime: hostile attacks by British commanders were permitted; communications with the French King were illegal; French ships captured
were lawfully prize ships; wartime materials were contraband; and
French subjects helping the British cause would receive protection.' In
these documents, the British King recognized the wrongs committed by
the French, their impact in creating a state of war, and the domestic legal
ramifications that flowed therefrom.
Thus, the usual British course toward war involved months, if not
years, of direct armed conflict without a declaration of war. Many of
these wars remained vivid in the minds of the Framers, whose fathers
253. However, one must discount for the propensity in international politics to claim that every
war is a defensive one.
254. See DECLARATION AGAINST THE FRENCH KING (May 7, 1689), reprinted in BRrrISH
ROYAL PROCLAMATIONS RELATING TO AMERICA, 1603-1783, at 147 (Clarence S. Brigham ed.,
1911) [hereinafter BRIGHAM].
255. See DECLARATION OF WAR AGAINST THE FRENCH KING (Mar. 29, 1744), reprinted in
supra note 254, at 196.
256. See DECLARATION OF WAR
BRIGHAM, supranote 254, at 203-06.
BRIGHAM,
257.
See supranotes 254-256.
AGAINST THE FRENCH KING
(May 17, 1756), reprinted in
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[Vol. 84:167
fought in them as subjects of the British Empire. The colonies themselves were often a substantial part of the theater of war and, in any
event, they were valuable wartime assets of the Crown. Thus, we can expect the Framers to have remembered the full year of British naval attacks against the French and Spanish that preceded Queen Anne's
declaration of the War of the Spanish Succession on May 4, 1702.151
The War of the Austrian Succession, which England declared against
Spain on October 13, 1739, and against France on March 29, 1744,
would have remained even more vivid in their minds 59 Months before
the 1739 declaration, British naval commanders in North America began offensive operations against Spanish forces and settlements. Almost
a year before the 1744 declaration, the entire Empire celebrated the
battle of Dettingen, in which King George II himself led British troops
to victory over the French. 6°
If any event impressed on the Framers the idea that declarations of
war were unnecessary to conduct hostilities, it was the Seven Years' War.
Not only was that war the most recent, and the one in which George
Washington saw his first significant military action, it was also the first
conflict between the Great Powers that began in America. England did
not declare war on France until May 17, 1756.261 Nonetheless, American and British troops had engaged in direct conflict with French troops
as early as July 3, 1754, when French troops defeated colonial forces
under Major George Washington in the disputed Ohio Valley. 62 One
year later (but still eleven months before a declaration of war), the
French scored a stunning victory at the battle of Fort Duquesne over two
regiments of British regulars led by the unskilled commander in chief
of British North America, General Braddock. Americans remembered
the date of the battle well, for Washington had served as aide-de-camp to
Braddock and, in revolutionary myth, had led the Virginia militia courageously in Indian-style fighting tactics while the British had died like
cowards. 63 Even in the early decades of the nineteenth century, American legal scholars, such as Chancellor Kent, still remembered that the
258.
See 6 COBBETT'S PARLIAMENTARY HISTORY OF ENGLAND 16-17 (1810); MAURICE, supra
note 252, at 13.
259. See 11 COBBTrT'S PARLIAMENTARY HISTORY OF ENGLAND 1-3 (1812) (George I's
declaration of war against Spain); 13 id. 688-91 (George 11's declaration of war against France).
260. See DOUGLAS E. LEACH, ARMS FOR EMPIRE: A MILITARY HISTORY OF THE BRITISH
COLONIES IN NORTH AMERICA, 1607-1763, at 210 (1973); MAURICE, supranote 252, at 19.
261. LEACH, supra note 260, at 380-81.
262. See id. at 340-41.
263. According to Washington, the Virginia militiamen had "behav'd like Men and died like
Soldiers," while "the dastardly behaviour of the English Soldier's expos'd all those who were inclin'd
to do their duty to almost certain Death." Id. at 368.
19961
THE CONTINUATION OFPOLITICS
Seven Years' War had broken out in America several years before England formally declared war.2"
5. Summary of the British Model
This review of English constitutional history reveals the positive
political system that grew out of the formal legal boundaries described
by Blackstone. The eighteenth-century English monarch was commander in chief of the armed forces and possessed exclusive power to
enter into treaties, to declare war, and to raise and regulate the army and
navy. Although formal power was allocated to the monarch, Parliament
exerted its influence in these areas through its sole control over the
public fisc and through its power to impeach ministers. Parliament
could end wars by threatening to eliminate supplies for the army. It
could try to force the King into war by voting funds for wars it wanted
the Crown to initiate. It could hold the Crown accountable for decisions
concerning treaties and war by impeaching the King's ministers for foreign policy failures. A foreign observer of the eighteenth-century British Constitution summarized the system nicely:
The king of England... has the prerogative of commanding armies, and equipping fleets; but without the concurrence of
his parliament he cannot maintain them. He can bestow places
and employments; but without his parliament he cannot pay the
salaries attending on them. He can declare war; but without his
parliament it is impossible for him to carry it on. In a word, the
royal prerogative, destitute as it is of the power of imposing
taxes, is like a vast body, which cannot of itself accomplish its
motions; or, if you please, it is like a ship completely equipped,
but from which the parliament can at pleasure draw off the water,
and leave it a-ground-and also set it afloat again, by granting
subsidies.2 65
These operating relationships, "expressed in both formal constitutional law and politics, provided a starting point when our Framers
drafted our Constitution. Steeped in the British political history of their
day, the Framers could see before them the long gray line of Stuart
Kings, impeached ministers, divisive wars both foreign and domestic,
and unruly Parliaments. Naturally, then, when the Framers allocated war
powers between the President and Congress, they used as their baseline
the separation of powers they believed to exist between King and Parliament.
264.
265.
See 1 KENT, supra note 250, at 54.
J.L. DE LOLME, THE CONSTITUTION OF ENGLAND 72 (1821).
CALIFORNIA LAW REVIEW
[Vol. 84:167
II
WAR AND EARLY AMERICA
The Framers were influenced not only by the theory and practice
of British war-making, but also by their own experiences with American
government prior to 1787. This Section will discuss war powers as illuminated by the colonial charters, state constitutions, and the Articles of
Confederation. Although Blackstone and the Articles of Confederation
have been the primary focus of scholarly attention, 66 colonial charters
and state constitutions deserve a central place in the historical debate
over war powers. The colonies, and later the states, provided the
Framers with a shared system of reference with which to understand the
workings of government. Colonial governments provided examples of
legislative participation in military affairs through the appropriations
power. State governments provided working examples of a separate
executive branch, which the Articles of Confederation lacked. The
states each constituted independent nations capable of waging war or
making peace on their own, and as independent states, chose different
allocations of the war powers.267 Finally, as the most significant governmental legal documents of their day, state constitutions provide the
most relevant legal context for construing the meaning of the federal
Constitution.
The states' experiences prior to the drafting of the Constitution
provided evidence to the Framers of both the dangers and the advantages of a strong executive. On the one hand, the revolutionaries, in
part, had rebelled against the power of the royal governors. On the
other hand, the Framers had witnessed the excesses of the postrevolutionary state legislatures and the crippling of the independence
and authority of their executive branches. By studying the evolution of
the state constitutions, we can better understand the Constitution and war
powers as part of the Framers' attempt to cure legislative excess by
erecting a unitary, independent executive in the form of the presidency.
In this effort, the Framers borrowed from the examples of governors
they thought had performed particularly well, and rejected those executives whose power remained subordinated in all respects to their assemblies.
When understood in the context of the Anglo-American
constitutional traditions of executive leadership in war and of legislative
fiscal control, the Constitution's allocation of war powers becomes yet
clearer.
266. Charles Lofgren, Abraham Sofaer, Raoul Berger, and Arthur Bestor, whose works are most
often mentioned as historical support for a reduced presidential role in warmaking, fail to examine
the state constitutional examples. See generally LOFGREN, supra note 114, SOFAER, supra note 14;
Berger, supra note 13; Bestor, supranote 2.
267. One could say that the states were thirteen nations brought together by a common enemy.
1996]
THE CONTINUATION OFPOLITICS
A. Colonial Government
Although they would come to suspect the institution, the colonists
had an intimate familiarity with executive government. To a surprising
degree, colonial government-whether royal, corporate, or proprietary-mirrored the formal institutional arrangements of the British
Constitution. Each colony had an executive governor, appointed by the
Crown for an indefinite term, a representative legislature, and some type
of council or upper house. 6 ' In most cases, the formal powers of the
colonial governors exceeded those of the monarchy back home. For
example, colonial governors possessed the authority to veto colonial
legislation, to dissolve the legislature, and to appoint and dismiss judges
at will, all powers which the King had not exercised since before the turn
of the eighteenth century.269
As in these areas, so too it was in the arena of war. Colonial charters gave the governors full control over the raising and deployment of
the military, which most often took the form of the militia. Royal
commissions authorized colonial governors
to arm, muster, and command all persons residing within his
province; to transfer them from place to place; to resist all enemies, pirates, or rebels; if necessary, to transport troops to other
provinces in order to defend such places against invasion; to
pursue enemies out of the province; in short, to do anything
properly belonging to the office of commander-in-chief.10
Massachusetts' Charter contained a typical colonial provision for
making war. It vested in "the Governor of our said Province" the "full
Power by himselfe" to "traine instruct Exercise and Governe the
Militia," "to assemble in Martiall Array and put in Warlike posture"
the inhabitants, and to lead the militia "to Encounter Expulse Repell
Resist and pursue by force of Armes," and "to kill slay destroy and
Conquer" any person or group that attempted to invade or annoy the
colony." The Governor also had the sole power to impose and administer martial law, to fortify strongholds, and to stockpile weapons.'
Interestingly, one of the few formal checks placed on the governor's military discretion was imposed by the declaration of war. For
268.
269.
270.
AMERICA
See BERNARD BAILYN, THE ORIGINS OF AMERICAN POLITICS 63 (1970).
See id. at 67-69.
EVARTS B. GREENE, THE PROVINCIAL GOVERNOR IN THE ENGLISH COLONIES
OF NORTH
98-99 (1907).
271. CHARTER OF MASSACHUSETTS BAY (1691), reprinted in 3 THE FEDERAL AND STATE
CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS 1884 (Frances N. Thorpe ed.,
1909) [hereinafter THORPE]; see also CHARTER OF MARYLAND (1632), reprinted in 3 id at 1682;
CHARTER OF GEORGIA (1732), reprinted in 2 id. at 776; CHARTER OF CONNECTICUT (1662),
reprintedin I id at 534-35.
272.
CHARTER OF MASSACHuSETTS BAY
(1691), reprintedin 3 THORPE, supranote 271, at 1884.
CALIFORNIA LAW REVIEW
[Vol. 84:167
example, some governors could not impose martial law without a declaration of war from England. 3a This again highlights the role of the
declaration of war in eighteenth-century Anglo-American constitutional
law as fundamentally one of defining legal relationships, especially at
home. Only after a declaration of war could the governor take the domestic steps, such as infringing temporarily on colonists' rights or liberties, needed to fight a war.
These provisions also show that the governor's war powers had
limits imposed by his subordinate position in the British governmental
hierarchy. Governor Dinwiddie of Virginia, for example, could not
very well declare war on France without the approval of the King. It
does not appear that the declaration had to precede military operations,
for a historical study uncovers only three declarations of war in the
colonies,274 even though the colonists engaged in almost constant hostilities with various Indian tribes (and other European settlers and
troops) throughout the pre-Revolutionary period. 5 The declaration of
war's main purpose lay not in authorizing military operations, but in
triggering the governor's exercise of his domestic powers, such as the
authority to impose martial law.
An absence of formal limits did not prevent the same type of political processes that checked the British monarch from constraining the
colonial governors. Although this structure of government produced
relative harmony in England by the mid-eighteenth century, it spawned
the exact opposite in the colonies. According to Professor Bailyn,
"[t]here was bitter, persistent strife within the provincial governments
almost everywhere," particularly between the different branches of government. 276 As their brethren did in England, colonial legislators used
their broad powers over the purse to inject themselves into all manner of
policy making, including military and diplomatic affairs. 277 Assemblies
passed legislation to man and equip the military, to define militiaman
duties, and even to conduct military and diplomatic affairs with the
Indians. Governors depended upon the assemblies for "temporary acts
for the enforcement of the simplest military obligations," such as legislation defining how long a militiaman had to serve and what weapons
he should have." The history of the southern colonies is replete with
273. See supra note 271.
274. Some governors exercised a limited power to declare war against the Indians. In 1722 and
1755, the governor of Massachusetts issued such a declaration with the advice of his council. New
Hampshire's executive did likewise in 1745. GREENE, supranote 270, at 107-08.
275.
Idl at 107-09. In fact, it appears that the colonies were almost constantly at war with one
foe or the other, whether it be Indians or the French. See generallyLEACH, supra note 260.
276. See BAILYN, supranote 268, at 63-64.
277. See WOOD, supranote 175, at 154.
278. GREENE, supranote 270, at 101.
1996]
THE CONTINUATION OFPOLITICS
examples of legislatures using their powers to man, equip, and maintain
the military, and to specify how, when, and where the governor could
exercise force. 9
Virginia provides an example of the manner in which colonial legislatures mimicked the English Parliament's use of its funding powers to
influence military affairs. In passing appropriations for the military,
Virginia's House of Burgesses regularly specified the number of soldiers to be called up, their duty stations, their officers, their pay, and
their quota of ammunition.28 ° The House even went so far as to direct
the governor how to command the force. To keep checks on the governor's use of the army, the legislature established a special committee
to advise the governor on military operations. By 1676, the Virginia
legislature had assumed "a large part of the responsibility for all military operations within the colony. '21 As in England, the appropriations
power bestowed upon the representative assemblies the ability to participate in issues of war and peace even in a frontier environment that could
have otherwise encouraged deference to executive power.
In addition to the spending power, the colonists resorted to an
added check on the executive branch because of the peculiar position of
the governor in the structure of the British imperial system. Although
the governor formally held the upper hand in the colonies, he, too, was
subject to the higher authority of the Crown and its ministers in
England. By the 1750s, the colonies had developed close communications with the political leadership in the mother country, links they
used to appeal and overturn decisions by the colonial governors.8 2
B. The War Powers in the New State Constitutions
Despite checks on the governors' powers, the colonists turned
against executive authority when they rebelled against Great Britain.
The new state constitutions both placed explicit restrictions on the executive power and diluted the structural unity and independence of the
executive as an institution. But these frameworks of government were
significant not because they served as models for the 1787 Constitution,
but because they contained mistakes to be avoided. As such, they provide valuable foils for interpreting our Constitution's war clauses.
Accepting the tenets of English Whig radicalism, the colonists believed that Great Britain, following the life cycle of other great empires,
was abandoning freedom and liberty to become a land of tyranny. 2 3
279. See JACK P. GREENE, THE QuEsr FOR POWER: THE LOWER HOUSES OF ASSEMBLY IN THE
SOUTHERN ROYAL COLONIES 1689-1776, at 297-309 (1963).
280.
281.
282.
283.
Id. at 303.
Id.
See BAILYN, supra note 268, at 90-91.
See WooD,supranote 175, at 32-34; see also BAILYN, supra note 159.
CALIFORNIA LAW REVIEW
[Vol. 84:167
According to Whig thought, the English Constitution, as defined in the
settlement of the 1688 Glorious Revolution, required that the three parts
of government-Crown, Lords, and Commons-maintain their independence from one another. George I1[ had sought to overturn this
balance by extending his influence and patronage into Parliament.
When the British government attempted after 1763 to place tighter controls on the colonies, the colonists saw the fulfillment of these predictions of tyranny.'
Taxation without representation, the stationing of
troops in Boston, and the institution of vice-admiralty courts were
viewed by colonists as attempts to subvert the British Constitution and
crush democracy in North America.8 5
1. Early Efforts to Rein in Executive Power
Antipathy toward the Crown found a powerful expression in the
first constitutions drafted by the newly independent states. These
documents not only show that the revolutionaries wanted to rein in executive power, but also demonstrate how they sought to do so. In this
respect, the mechanisms chosen by the revolutionaries contrast sharply
with the provisions of the Constitution of 1787. States began by eliminating the independence and unity of the governor's office. For example, in all but one state, the legislators elected the governor (often one of
their own), which made the governor directly accountable to the assembly rather than to the People."s
States also limited the term and eligibility of the governor in an
effort to reduce his power and influence. Most states either provided
for the annual election of the governor, restricted the number of terms a
governor could serve, or both. As the Maryland Constitution declared,
"a long continuance, in the first executive departments of power or
trust, is dangerous to liberty; a rotation, therefore, in these departments,
is one of the best securities of permanent freedom." ' 2
States also
eliminated the structural unity of the executive branch in an attempt to
undermine executive power. Pennsylvania undertook the most radical
284. See WOOD, supra note 175, at 36-43.
285. Thus, the Declaration of Independence portrays all the "abuses and usurpations" visited on
the colonies as the personal actions of George Ilm.As part of its list of grievances, the Declaration
included claims that the King "has kept among us, in times of peace, Standing Armies without the
Consent of our legislature," and that he "has affected to render the Military independent of and
superior to the Civil Power." THE DECLARATION OF INDEPENDENCE paras. 13-14 (U.S. 1776).
286. See DEL. CONST. art. 7 (1776), reprintedin 1 THORPE, supra note 271, at 563; MD. CONST.
art. XXV (1776), reprintedin 3 id, at 1695; NJ. CONsT. art. VII (1776), reprinted in 5 id. at 2596;
N.C. CONST. art. XV (1776), reprintedin 5 id.
at 2791. New York provided for the direct election of
the governor, an important exception which influenced the Framers of the federal Constitution. See
infra text accompanying notes 312-320.
287. MD. DECLARATION OF RIOHTS art. XXXI (1776), reprintedin 3 THORPE, supra note 271, at
1689.
1996]
THE CONTINUATION OFPOLITICS
reform by replacing the single governor with a twelve-man executive
council elected by, and responsible to, the People.ss
Other states re-
formed their executive branches by creating councils of state, which
were appointed by the legislature for the purpose of advising the governor before he pursued a course of action." 9 The councils often made
the governors "little more than chairmen of their executive boards."'' °
Historians of the presidency and of war powers have focused on
these institutional changes to show that the revolutionaries planned to do
away with a strong executive government. 29' These structural modifica-
tions, however, do not bear as much significance for our study because
the Framers reversed many of them when they created the unitary presidency.292 Instead, we must focus on the substantive powers the states
gave to their executive branches. Despite the fragmentation of the executive as a unitary institution, the states still left many substantive powers in the hands of the executive branch, which would suggest that the
Framers did not wish to alter the accepted allocation of those powers.
As Willi Paul Adams observed in his authoritative work on the revolutionary state constitutions,
[t]he striking fact of historical dimension is that the reaction
against the colonial governor was so weak that it did not lead to
parliamentary government with an executive committee of
members of the legislature, but rather that within a decade the
American system of presidential government evolved with full
clarity and permanence. 9
288. PA. CONST. § XIX (1776), reprintedin 5 id. at 3086-87.
289. See, e.g., DE.. CONST. art. 8 (1776), reprinted in 1 id.at 563-64; GA. CONsr. art. XXV
(1777), reprintedin 2 id. at 781-82; MD. CONsT. art. XXVI (1776), reprintedin 3 id. at 1695; N.C.
CoNsr. art. XIV (1776), rerprintedin 5 id. at 2791; S.C. CONSr. art. V (1776), reprinted in 6 id. at
3245; VT. CONST. art. XVII (1777), reprintedin 6 id. at 3744; VA. CONsT. para. 9 (1776), reprinted in
7 id at 3816-17.
290. WOOD,supra note 175, at 138.
291. See, e.g., SOFAER, supra note 14, at 16-19.
292. How "unitary" the Framers intended the presidency to be remains a topic of fierce
academic debate, one prompted by the reorganization efforts of Presidents Reagan and Bush. For the
latest salvos, see generally Steven G. Calabresi & Saikrishna B. Prakash, The President'sPower to
Execute the Laws, 104 YALE L.. 541 (1994); Calabresi & Rhodes, supra note 15 (strong unitary
executive); Lessig & Sunstein, supra note 15 (weak unitary executive). This question also has
bedeviled the Supreme Court since its contradictory opinions in Myers v. United States, 272 U.S. 52
(1926), and Humphrey's Executor v. United States, 295 U.S. 602 (1935), until more recent times in
Mistretta v. United States, 488 U.S..361 (1989), and Morrison v. Olson, 487 U.S. 654 (1988). In part,
this study suggests that some of these discussions have failed to take account of the historical
background against which the Framers acted. In creating the unitary presidency, the Framers were
reacting to their experiences with the colonial and state governments, particularly the weak, divided
state governors.
293. NVILLI PAUL ADAMs, THE FIRST AMERICAN CONSTITUTIONS: REPUBLICAN IDEOLOGY
AND THE MAKING OF THE STATE CONSTITUTIONS IN THE REVOLUTIONARY ERA 271 (Rita & Robert
Kimber trans., 1980).
CALIFORNIA LAW REVIEW
[Vol. 84:167
To be sure, many of the revolutionaries did hope to restrict the substance as well as the structure of executive power. A noted scholar of
the presidency has found in the revolutionary constitutions "the common practice of expressly submitting the exercise of either certain
enumerated powers, the field of enumerated powers, or even the whole
'
of the executive power to the legislative will."294
Perhaps Thomas
Jefferson was the most ambitious in terms of strictly controlling the
power of the executive, whose role was captured by Jefferson's title for
him: the "Administrator." ' In his draft of the Virginia Constitution,
Jefferson enumerated the powers that the executive could not exercise: the Administrator could not dismiss the legislature, regulate the
money supply, set weights and measures, establish courts or other public
facilities, control exports, create offices, or issue pardons-powers that
traditionally belonged to the King.2 96 When it came to war powers,
Jefferson's draft stated that the Administrator could not "declar[e] war
or peace[,I issu[e] letters of marque or reprisal[,] rais[e] or introduc[e]
armed forces[, or] build[] armed vessels.., forts or strongholds.""
Although the draft still left to the Administrator any remaining "powers
formerly held by [the] king," there would seem little residual
Commander-in-Chief powers left due to the prohibition on the executive from "introducing armed forces. "
Unfortunately for Jefferson, the constitution writers of most states
rejected his approach. Instead of declaring that the Administrator could
not wage war or make peace, the states either gave the governor the exclusive power to decide when to use the militia, or required that he consult the council before calling forth the military. Even Jefferson's
native state put aside his suggestions. Although it had Jefferson's proposal before it, the Virginia constitutional convention of 1776 adopted
George Mason's alternative, which allowed the governor to "embody
the militia with the advice of the privy council, and when embodied, let
the gov[ernor] alone have the direction of the militia, under the laws of
the country." ' 9 The convention also deleted Jefferson's enumeration
of war powers that were forbidden to the executive.
Undeterred, Jefferson offered his language as a constitutional
amendment, but the other members of the convention rejected it in favor of a provision permitting the governor, with the advice of a council
294.
C.
1775-1789: A STUDY IN
29 (1922).
Thomas Jefferson, FirstDraftof the Virginia Constitution, art. 11 (1776), reprinted in 1 Tim
OF THOMAS JEFFERSON 337, 341 (Julian P. Boyd ed., 1950).
1id.at 342.
1 id.
1 id.
The Mason Plan as Revised by the Committee art. IX (1776), reprintedin I id.at 369, 371.
CHARLES
THACH, JR., THE CREATION OF THE PRESIDENCY,
CONSTITUTIONAL HISTORY
295.
PAPERS
296.
297.
298.
299.
1996]
THE CONTINUATION OFPOLITICS
of state, to "exercise the Executive powers of Government. '' 3°° Although Virginia's approach of introducing consiliar approval, which
resembled that of many other states, placed structural checks on the
governor's power, it was not a substantive limitation on the executive
branch's power to make war. The privy council itself was part of the
executive branch. Although a dead end, Jefferson's scheme was widely
circulated, and it provided an example of how the Framers could have
created a legislature-first approach to war-if they had chosen to do so.
In drafting their new constitutions, states generally rejected
Jefferson in favor of John Adams, who for once had his day over his
friend and future rival. In his Thoughts on Government, which became
the blueprint for many of the state constitutions, Adams suggested that
the states should adopt bicameral legislatures and create a governor
"who, after being stripped of most of those badges of domination
called prerogatives, should have a free and independent exercise of his
judgment, and be made also an integral part of the legislature."30'
Adams considered war-making authority and the control of the armed
forces not as "badges of domination," but as legitimate prerogatives of
the executive power. Adams recommended to the states that the "Governor should have the command of the militia, and of all your
armies.""0
In the area of war powers, as in other respects, Adams advised the
states to reproduce the forms and powers of the English Constitution,
after adjusting the branches of government to be more responsive to
popular sovereignty. Thus, Adams' plan called for the presence of a
governor, a commons, and a mediating senate, but in no way enumerated the powers each body was to exercise. If we think of the allocation
of war powers among the British and colonial governments as the background upon which the state constitutions were drawn, then state silence
would seem to indicate an acceptance of the British approach. In other
words, if the states had wanted to reject the traditional model of AngloAmerican war-making, which was composed of executive initiative, legislative appropriations, and judicial absence, then their constitutions
would have followed the lines suggested by Jefferson. Instead, the
300. The Constitution as Adopted by the Convention (1776), reprinted in I id, at 377, 380. We
should note that the constitution forbade the executive from exercising "any power or prerogative by
virtue of any Law, statute, or Custom, of England." VA. CONsT. para. 9 (1776), reprinted in 7
THORPE, supranote 271, at 3816-17.
301. John Adams, Thoughts on Government (1776), reprinted in 4 PAPERS OF JOHN ADAMS 65,
89 (Robert J. Taylor ed., 1979). Adams originally wrote Thoughts on Government in response to
requests from representatives of North Carolina, Virginia, and New Jersey, who had come to him for
advice on how to frame their new governments. See 4 id at 65-73. Others then published the
proposal as a pamphlet, in which form it reached many of the other state constitutional conventions. 4
id.
302. 4 id. at 90.
[Vol. 84:167
CALIFORNIA LAW REVIEW
revolutionaries decided to mimic the British forms of government, as
recommended by Adams.
Thus, while the revolution may have represented a rebellion against
the presence of the Crown, it was not an assault on the relationship
between executive and legislative powers in war. As under the royal
governors, the common practice of the states either assumed that the
governors had broad war-making authority, or explicitly gave them
such power in terms reminiscent of the British" Constitution and the colonial charters. Unlike the federal Constitution, the state constitutions
chose not to enumerate the powers of their legislatures, and instead
allowed them to exercise their traditional power to fund and supply,
rather than authorize, war. Although some states such as Maryland
initially introduced the innovation of prohibiting the raising of a standing army without the consent of the legislature," these provisions
merely continued a principle first set out in the English Bill of Rights of
1689. As Alexander Hamilton noted, such provisions were redundant
with the state legislatures' plenary power to raise and fund the
armies: "[I]t was superfluous, if not absurd, to declare that a matter
should not be done without the consent of a body, which alone had the
power of doing it." 3°4
While they remained silent as to legislative war powers, the state
constitutions retained the substantive military powers of the governor.
Although the states experimented radically with the structure of the executive branch, they left relatively unchanged the traditional allocation
of powers between the legislative and executive branches. The framers
of the state constitutions did not alter the existing arrangement in war
powers, but rather retained the pre-revolutionary system of independent
executive war-making. Like New York and New Jersey, for example,
Georgia vested the "supreme executive power" in the governor and
declared that he "shall be captain-general and Commander in Chief
over all the militia, and other military and naval forces belonging to this
3 5 Seen in this light, state constitutions represented a continuaState.""
tion, rather than a break, from the example of the British Constitution
and the practice of the royal colonial governors.
To be sure, the state constitutions were not exact duplicates of the
British framework. Nonetheless, an examination of the manner in which
the states addressed the allocation of war-making powers bears out the
intent to continue the general British patterns. Of the different modifi303.
Mt. DECLARATION OF RIGHTS art. XXVI (1776), reprinted in 3
THORPE,
supranote 271, at
1688.
304. THE FEDERALiST No. 26, at 167 (Alexander Hamilton) (Jacob E. Cooke ed., 1982).
305. GA. CONST. art. XXXIII (1777), reprintedin 2 THORPE, supra note 271, at 782; see also NJ.
CONST. art. ViII (1776), reprintedin 5 id. at 2596; N.Y. CONST. art. XVIII (1777), reprinted in 5 id. at
2632.
19961
THE CONTINUATION OFPOLITICS
cations the states made, the most common was a provision that explicitly
called upon the governor to consult with others before deciding to deploy the military. These clauses usually required that before calling
forth the militia the governor had to receive approval from a council of
state appointed by the legislature but part of the executive branch. In a
typical example, Delaware's war clause declared that its "president, with
the advice and consent of the privy council, may embody the militia,
and act as captain-general and commander-in-chief of them, and the
other military force of this State, under the laws of the same.""3 6
The fact that these consultation provisions were included illustrates
the common understanding among the framers of the state constitutions
that the governor generally had no pre-existing duty to consult with the
legislature before sending the state into war. Correspondingly, if the
Framers of the federal Constitution had wanted the President to consult
with either the legislature or within the executive before embarking on a
military venture, they easily could have borrowed from these state provisions and required the President to consult with the Senate (as some in
the Constitutional Convention proposed) or some other body.
The states also recognized the checks on the executive imposed by
the citizens, particularly through their participation in the militia. Composed of armed, everyday citizens, the militia not only often served as a
state's only military force, it also played an important role in revolutionary ideology as a locus of republican values. Framers of the state
constitutions hoped that the militia both would bring the People together and would provide them with a means of resisting oppressive
government actions."n As a result, they took steps to increase the voice
of the People directly in military affairs. First, some state constitutions
either prohibited or warned against the raising of a standing army.
Virginia's provision is representative: "That a well-regulated militia,
composed of the body of the people, trained to arms, is the proper,
natural, and safe defence of a free State; that standing armies, in time of
peace, should be avoided, as dangerous to liberty .... 3os Second,
306. DEL. CONsr. art. 9 (1776), reprinted in 1 THORPE, supra note 271, at 564; see also MD.
CoNsT. art. XXXIII (1776), reprintedin 3 id. at 1696; N.C. CONsT. art. XVIII (1776), reprinted in 5
id. at 2791; PA. CON T. § 20 (1776), reprinted in 5 id. at 3087-88; VT. CONsT. art. XVIII (1777),
reprintedin 6 id. at 3745; VA. CONST. para. 14 (1776), reprintedin 7 id, at 3817.
307. On the republican nature of the militia, see Akhil R. Amar, The Bill of Rights as a
Constitution, 100 YALE .,. 1131, 1162-64 (1991); David C. Williams, Civic Republicanism and the
Citizen Militia:The Terrifying SecondAmendment, 101 YALE LJ. 551 (1991).
308. VA. DECLARATION OF RIGHTs § 13 (1776), reprintedin7 THoRPE, supra note 271, at 3814;
see also MD. DECLARATION OF RIGHTs art. XXVI (1776), reprinted in 3 id. at 1688; MASS.
DECLARATION OF RIms art. XVII (1780), reprinted in 3 id, at 1892; N.H. DECLARATION OF
RIGHTS art. XXV (1784), reprintedin 4 id. at 2456; N.C. DECLARATION OF RIGHTS art. XVII (1776),
reprintedin 5 id. at 2788; PA. DECLARATION OF RIGHTs art. XIII (1776), reprinted in 5 id. at 3083;
VT. DECLARATION OF RIGHTS art. XV (1777), reprintedin 6 id. at 3741.
CALIFORNIA LAW REVIEW
[Vol. 84:167
some state constitutions permitted the militia to elect many of their own
officers, making them representatives of the People rather than appointees responsible to the governor."° Third, two states, Massachusetts and
New Hampshire, required that the governor receive the militia's approval before leading them outside state limits.31
These provisions revealed the revolutionaries' belief that a democratic check on the war powers emanated from the People themselves by
virtue of their relationship with the executive as citizen-soldiers. The
army and militia acted as a republican institution that not only fought
the wars, but also participated directly in executive decision making.
Such arrangements obviated the need for legislative input in military
matters beyond questions of funding, for legislators could play only an
imperfect role as representatives of the People.
In many ways, the early state constitutions could have formed the
foundation for a Constitution that limited executive war powers. Early
proposals sought to prohibit the executive branch from beginning wars
or from introducing armed forces. These suggestions were rejected in
favor of continuing the traditional allocation of war-making authority.
Instead of placing substantive limits on the executive's war power, the
Framers decided to alter the structure of the executive itself. Later state
constitutions discarded these structural experiments and reinstituted a
unified, vigorous executive, thereby leaving executive war powers for
the most part in the hands of the governor.
2. Executive Power Reborn: New York, Massachusetts, and
New Hampshire
After the initial wave of state constitution-making, other states provided for a strong, unitary executive branch that afforded the governor
a wide degree of authority and structural independence. These examples demonstrated that an independent and unitary executive could exercise a wide degree of freedom in matters of war and peace. The New
York constitution, for example, received wide praise among the Framers
on account of its powerful executive.3" Enacted in the spring of 1777,
the New York constitution benefitted from the errors of other state constitutions, and also perhaps from the British occupation of a large portion of the state, which created a sense of emergency and danger among
the state's leaders. Rejecting the structural handcuffs placed on the executive by other states, New York vested "the supreme executive power
See, e.g., N.J. CONsr. art. X (1776), reprinted in 5 THORPE, supra note 271, at 2596.
MASS. CoNsr. art. VII (1780), reprintedin 3 id. at 1901; N.H. CoNsr. (1784), reprintedin 4
id. at 2463-64. However, these provisions seem to codify a similar ban on the King of England
preventing him from leading the militia outside of England.
311. See THACH, supranote 294, at 34-35.
309.
310.
19961
THE CONTINUATION OFPOLITICS
and authority of this State" in a single, popularly elected governor. No
privy council was created to look over his shoulder, 12 nor did any limitation exist on the number of terms a governor could serve. 3
New York's governor had not only ample structural independence,
but also the same broad war powers as his colleagues in other states.
The constitution vested him with the position of "general and commander-in-chief of all the militia, and admiral of the navy of this
State, 3 4 and remained silent as to the assembly's authorities, which left
to the legislature its customary role in making funding decisions. During the Revolutionary War, George Clinton, the state's first governor,
sent the militia on his sole authority to reinforce General Gates' campaign against British forces under Burgoyne, a move of which he later
notified the legislature in his first inaugural address." 5 Throughout the
war, Clinton (himself a military officer) worked closely with General
Washington and his subordinates to coordinate operations against the
British.31 6 Although it expressed its views when appropriating funds for
the war effort, the legislature generally obeyed Clinton's wishes. He
encountered such success in running the war and the state that the voters
returned him to office for eighteen consecutive years, even though for
most of the war New York City remained in the hands of the enemy.3 7
New York's example was significant not because it granted the executive broader substantive war powers than the other states; New York's
allocation of powers remained fairly unexceptional. It was only when
these common substantive powers were combined with a structurally
independent and unitary governor that vigorous executive government
emerged. These lessons did not go unnoticed by the Framers.
New York's experience influenced not only the later constitutionwriting efforts of Massachusetts and New Hampshire, but also the work
of the Philadelphia Convention.'
During the struggle for ratification,
"Publius" expressed the thoughts of many when he declared that the
New York constitution "has been justly celebrated both in Europe and
in America as one of the best of the forms of government established in
312. N.Y. CONST. art. XVII (1777), reprintedin 5 THORPE, supranote 271, at 2632. Although it
did not establish a privy council, the New York Constitution did create two more specialized
councils: the Council of Revision, which exercised the veto power, and the Council of Appointment,
which advised on appointments. N.Y. CONST. arts. III, XXIII (1777), reprintedin 5 id. at 2628, 263334.
313. N.Y. CONST. art. VIII, reprintedin 5 THORPE, supra note 271, at 2632 (providing for a
three-year term for the governor).
314. N.Y. CONST. art. XVIII (1777), reprintedin 5 id.
315. See E. WILDER SPAULDING, HIS EXCELLENCY GEORGE CLINTON: CRITIC OF THE
CONSTITUTION 95-98, 114-18 (1938); THACH, supranote 294, at 37-38.
316. See SPAULDING, supra note 315, at 99-141.
317. See THACH, supra note 294, at 37.
318. See CLINTON ROSSITER, 1787: THE GRAND CONVENTION 59, 65 (1966); THACH, supra
note 294, at 34-38.
CALIFORNIA LAWREVIEW
[Vol. 84:167
'
this country."319
As Charles Thach has concluded, "here was a strictly
indigenous and entirely distinctive constitutional system, and, of course,
executive department, for the consideration of the Philadelphia delegates."32 ' As we will see, the Framers took New York to heart and proceeded to marry an independent, unitary President to the substantive war
powers exercised by King, colonial governor, and state executive.
The post-1777 state constitutions carried forward, rather than rejected, the progress in New York. Massachusetts, which adopted its constitution in 1780, and New Hampshire, which ratified a similar document
in 1784, both provided for strong executive power in war:
The president of this state for the time being, shall be commander in chief of the army and navy, and all the military forces
of the state, by sea and land; and shall have full power by himself... to train, instruct, exercise and govern the militia and
navy; and for the special defence and safety of this state to assemble in martial array, and put in warlike posture, the inhabitants thereof, and to lead and conduct them, and with them to
encounter, expulse, repel, resist and pursue by force of arms, as
well by sea as by land, within and without the limits of this state;
and also to kill, slay, destroy, if necessary, and conquer by all
fitting ways, enterprize and means, all and every such person and
persons as shall, at any time hereafter, in a hostile manner, attempt or enterprize the destruction, invasion, detriment, or annoyance of this state; and to use and exercise over the army and
navy, and over the militia in actual service, the law-martial in
time of war, invasion, and also in rebellion, declared by the legislature to exist ...and in fine, the president hereby is entrusted
with all other powers incident to the office of captain-general
and commander in chief, and admiral ....
"I
These war powers provisions not only gave the governor the commander-in-chief power, they also assumed that the governor had
authority to make war. Second, these provisions do not just limit executive war-making authority to defensive responses to attack, they also
explicitly provide for offensive operations under the direct authority of
the executive, who may use any means he sees fit ("kill, slay, destroy, if
necessary, and conquer by all fitting ways, enterprize and means") to
achieve his war aims. Given the governor's duty to secure the safety of
the state, these military provisions placed in the executive's hands the
responsibility and incentive to act first.
319.
320.
321.
THE FEDERALIST No. 26, supra note 304, at 167 (Alexander Hamilton).
THACH, supra note 294, at 43.
N.H. CoNsr. (1784), reprintedin 4 THORPE, supra 271, at 2463-64; see also MASS. CoNST.
art. VII (1780), reprintedin 3 id. at 1901.
19961
THE CONTINUATION OFPOLITICS
Massachusetts and New Hampshire's provisions also indicate the
role of a declaration of war as a judicial announcement, rather than a
legislative authorization for executive action. The power to declare war
is vested in the legislature, but only acts as a triggering device for the
governor's authority to declare martial law." The significance of the
declaration of war is, thus, its authorization to the executive to take certain national security measures at home.
The history behind Massachusetts' 1780 constitution demonstrates
the shared understanding that the executive branch should wield strong
war-making powers. In 1778, a convention had recommended a constitution for popular ratification that permitted the governor to exercise
the military power only "according to the laws.., or the resolves of the
General Court," and which prohibited him from marching the militia
out of the state without Senate approval. 3u However, the People rejected
the proposed document, supplied their reasons, and sent proposals for a
new constitution.
These criticisms and concerns were best expressed by the people of
the town of Essex in the "Essex Result." 3u Written mainly by
Theophilus Parsons,"s the Result had a profound effect on the Framers'
thinking about the separation of powers and individual rights.326 One
historian of the period describes the document as "an essay in political
theory and constitutional practice comparable to The Federalist in the
sophistication of its argument (and in its political outlook)."3 27
The Essex Result rejected the weak executive of the proposed constitution and called instead for an executive branch composed of an independent, directly elected governor and a privy council elected by the
legislature, with the power to veto legislation.328 The Result sharply criticized the proposed constitution for undermining the governor's powers
as "Captain-General" of the army and navy: "The executive power is
to act as Captain-General, to marshal the militia and armies of the state,
322. It seems apparent that a governor could wage war without imposing martial law, and none
of these constitutions indicate otherwise. The discussion of early English and colonial wars indicates
that martial law was rarely imposed.
323. The Rejected Constitution of 1778 (Mass.), reprinted in THE POPULAR SOURCES OF
POLITICAL AUTHORITY: DOCUMENTS ON THE MASSACHUSETTS CONSTITUTION OF 1780, at 190, 197
(Oscar & Mary Handlin eds., 1966) [hereinafter HANDLIN]. For another valuable documentary
source for this period, see generally MASSACHUSETTS, COLONY TO COMMONWEALTH: DOCUMENTS
ON THE FORMATION OF ITS CONSTITUTION, 1775-1780 (Robert J. Taylor ed., 1961).
324. The Essex Result (1778), reprinted in THEOPHILUS PARSONS, MEMOIRS OF THEOPHILUS
PARSONS 359 (1859) [hereinafter PARSONS].
325. Parsons later became Chief Justice of the Massachusetts Supreme Court.
326. See THACH, supra note 294, at 44-54; Jeff Rosen, Note, Was the Flag Burning Amendment
Unconstitutional?,100 YALE L.J. 1073, 1076-77 (1991).
327.
328.
ADAMS, supranote 293, at 91.
PARSONS, supranote 324, at 395-97.
CALIFORNIA LAW REVIEW
[Vol. 84:167
'
and, for her defence, to lead them on to battle."329
Divided authority
would be foolish: "Was one to propose a body of militia, over which
two Generals, with equal authority, should have the command, he would
be laughed at." ' ° "Let the Governor alone marshal the militia, and
regulate the same, together with the navy," the Result concluded.3
The writers of the Result recognized that the executive might try to
expand his overall authority through the exercise of his war power.33 2
Despite this concern, however, they decided that the governor's ability
to respond quickly to emergencies justified centralizing all military de-
cisions in his hands: "Should Providence or Portsmouth [towns outside
of, but near, Masschusetts] be attacked suddenly, a day's delay might be
of most pernicious consequence. Was the consent of the legislative
body, or a branch of it, necessary, a longer delay would be unavoid'
able."3 33
The Result recommended that the governor receive the approval of the privy council before marching the army outside the state,
and that within ten days after doing so he "convene the legislative body,
and take their opinion. '3M Even if the legislature disapproved, however,
the governor could still press on if "the general good requires it, and
'335
then he will be applauded.
Most of the Essex Result proposals, including those for an independent executive with strong legislative and military powers, made their
way into the Massachusetts Constitution.336 It provided the intellectual
bridge between the New York Constitution and the Massachusetts
Constitution, which itself provided the model for the New Hampshire
Constitution and for the federal Constitution.337 In sending the 1780
329. Id. at 380.
330. Id.
331. Id. at 396.
332. As they put it, "[h]e has the sword, and may wish to form cabals amongst his officers to
perpetuate his power." Id.
333. Id. The Result's mention of Providence, Rhode Island, and Portsmouth, New Hampshire, is
telling because these cities lie outside Massachusetts, which strongly implies that the governor's
authority to act quickly without legislative approval was not purely defensive. Although attacks on
those cities would present a clear danger to Massachusetts, the governor would be acting offensively
if he chose to send troops outside the state.
334. Id.
335. Id. The Essex Result also recommended allowing the legislature to remove "any militia
officer at pleasure" as an additional check on the executive's war powers. Id.
336. As a prominent Massachusetts judge wrote of the Result, it was an intellectual landmark that
stood "beyond any other political document of that day, a clear exposition of the principles upon
which the organic laws of a free state should be founded,-the very principles essentially adopted in
forming the Constitution of Massachusetts." HARRY A. CUSHING, HISTORY OF THE TRANSITION
FROM PROVINCIAL TO COMMONWEALTH GOVERNMENT IN MASSACHUSETTS 223 (AMS Press 1970)
(1896). For the history of the Massachusetts Constitution of 1780, see ADAMS, supra note 293, at 8693; Samuel E. Morison, The Struggle over the Adoption of the Constitution of Massachusetts, 1780, 50
PROC. MASS. HiST. Soc'Y 353 (1917).
337. THACH, supra note 294, at 44-54.
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THE CONTINUATION OF POLITICS
Constitution to the People for ratification, the Massachusetts constitutional convention further underscored the executive's primacy in war.
The framers of the draft linked the governor's military authority to his
veto powers as the twin underpinnings of the separation of powers and
of the People's safety:
The Legislative, the Judicial and Executive Powers naturally exist
in every Government: And the History of the rise and fall of the
Empires of the World affords us ample proof, that when the
same Man or Body of Men enact, interpret and execute the Laws,
property becomes too precarious to be valuable, and a People
are finally borne down with the force of corruption resulting
from the Union of those Powers. The Governor is emphatically
the Representative of the whole People, being chosen not by one
Town, or County, but by the People at large. We have therefore
thought it safest to rest this Power in his hands; and as the
Safety of the Commonwealth requires, that there should be one
Commander in Chief over the Militia, we have given the Governor that Commandfor the same reason .... "'
The Massachusetts Constitution previewed several of the themes
that would become prominent in the federal Constitution. The President
is seen as the representative and protector of the People, and his sole
command over the military without formal legislative control is crucial
to the separation of powers and the public safety. Following the ideals
set forth in the Essex Result, the influential Massachusetts constitution
envisioned a system in which the executive first took action in war, and
then sought approval after the fact from the legislature and the People.
Of course, the legislature also would retain the ability to participate before the fact by using its appropriations power to refuse to fund the
military.
To the reformers who would attend the Philadelphia convention,
the Massachusetts document "came to stand for the reconsidered ideal
of a 'perfect constitution.'... [It] seemed to... have recaptured the
best elements of the British constitution that had been forgotten in the
excitement of 1776."111 Its enumeration of the Commander in Chief's
powers, combined with the explanatory sidebar of the Essex Result, illustrates the contemporary understanding of the proper and most effective relationship between the executive and legislature in matters of war.
Massachusetts' example also is particularly compelling because it responded to a proposal that the legislature approve all military operations. Rejecting such an approach, the writers of the Essex Result and of
338. ADDRESS OF THE CONVENTION (Mar. 1780), reprinted in HANDLIN, supra note 323, at 434,
437-38 (emphasis added).
339. WOOD, supra note 175, at 434.
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the 1780 Constitution have given us a full explication of, and explanation for, the customary system of executive initiative in war.mO
3. A Path Not Taken
As states embarked on the modification of their new constitutions,
only one, South Carolina, chose to impose substantive, rather than
structural, limitations on the executive's war powers. In its 1776 constitution, South Carolina decided to rein in the war-making powers of
the executive branch, even though it designated the executive as the
"the president and commander-in-chief."'
South Carolina declared
"[t]hat the president and commander-in-chief shall have no power to
make war or peace, or enter into any final treaty, without the consent of
the general assembly and legislative council." 2 Two years later, South
Carolina made the restriction even clearer by declaring "[t]hat the governor and commander-in-chief shall have no power to commence war,
or conclude peace, or enter into any final treaty" without legislative approval. 3 Unlike her sister states, South Carolina required formal legislative approval of the executive's decisions on war and peace, and
prohibited the executive from beginning hostilities without the assembly's consent.
Although South Carolina's allocation of powers was not the one
adopted by the Framers, it is helpful to our interpretive exercise in two
ways. First, it indicates that the common understanding of war powers
did not require the executive to receive formal legislative approval to
commence hostilities. In the absence of such an understanding, there
would have been little need for South Carolina to include explicit language shifting power to the assembly.' In other words, if the revolutionary Americans commonly believed that a legislative endorsement
was necessary for war, then South Carolina's Constitution simply would
340.
New Hampshire followed a pattern similar to Massachusetts'.
New Hampshire's
Constitution of 1784 came about as a reaction to poor military and domestic management by the
state's supreme legislative body. Calling for a new constitution, New Hampshire's citizens demanded
a unified executive with broad military powers similar to the governor of Massachusetts. Several
New Hampshire addresses and pamphlets in favor of a stronger executive appeared to borrow quite
liberally from the Essex Result, which apparently was taken as the legislative history for the
Massachusetts Constitution. See THACH, supra note 294, at 48-49.
341. S.C. CoNsr. art. XXVI (1776), reprintedin 6 THORPE, supra note 271, at 3247.
342. 6 id
343. S.C. CONST. art. XXXIII (1778), reprintedin 6 id. at 3255 (emphasis added).
344. It is arguable that the South Carolina Constitution did not even represent the wishes of its
own people. The first permanent constitution drafted after the Declaration of Independence, the
constitution was drafted and approved by the sitting state legislature, rather than by a convention of
the people. See ADAMS, supra note 293, at 70-72. In contrast, the New York Constitution was
drafted by a new legislative body specifically elected for the purpose, see id. at 83-86, while the
Massachusetts Constitution was ratified by "[t]he first true constitutional convention in Western
history." Id. at 92.
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THE CONTINUATION OFPOLITICS
have remained silent, or it would have adopted the boilerplate language
of the state charters, and left it at that.
Second, South Carolina's war clause provides yet another example
of a path not taken by the Philadelphia delegates. If the Framers had
wanted to prevent the President from commencing war without congressional approval, as many legal scholars believe today, they could have
adopted a provision not unlike South Carolina's (or Jefferson's, for that
matter). Article I, Section 8, or Article II, Section 2, could have included a provision which stated that "the President shall have no power
to commence war, or conclude peace, without the consent of Congress."
In sum, the state constitutions are a significant, but overlooked part
of the history of war powers. The accepted scholarly conclusion that
the states reduced the independence of the executive branch fails to
capture the subtleties in the change in executive power. The change
embodied in these state constitutions was one of structure rather than of
substance. Despite the revolutionaries' adoration of the legislatures as
representatives of the People, when it came to war the states were nearly
unanimous that war-making authority should remain in the hands of the
executive, leaving the legislature to exercise its power through its traditional role as keeper of the treasury. Early efforts to rein in executive
power took the form of structural, rather than substantive, alterations in
the nature of the state governors. South Carolina's radically different
constitution is the exception that proves the rule: it was the only state to
restrain the executive's war powers by placing decision-making authority in war in another branch of government. If the Framers of 1787 had
wanted to adopt either South Carolina's system, or a system requiring
consultations with other bodies such as a council or Senate, they had a
clear example to follow.
C. The Articles of Confederationand the Prelude to Constitutionalism
This Section offers a re-examination of the Articles of Confederation that suggests that the example of the Continental Congress is not
inconsistent with the interpretation of war powers presented here. Assuming the Continental Congress to be a legislature, scholars commonly
rely on the Articles to prove that war and foreign affairs were primarily
"legislative" in character. A closer examination of the Articles will
demonstrate that the Congress performed a primarily executive function, and that war and foreign affairs properly rested within the jurisdicIn this sense the Articles represented a
tion of such a body.
continuation of, rather than a rejection of, the British tradition.
Drafted in 1777 and ratified in 1781, the Articles of Confederation
created the only national government Americans would know until
1788. Understandably, the Articles have become a focal point for his-
CALIFORNIA LAW REVIEW
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torical studies of war powers because they supplied many of the antecedents for various powers found in the Constitution. Since the Articles
vested all national powers in the Continental Congress, including those
over war and peace, historians often assume that the Framers believed
the war powers to be legislative in nature. Arthur Bestor, for example,
finds in the Articles evidence of a common belief that foreign policy
decisions were "to be arrived at through legislative deliberation-the
very antithesis of the idea of vesting the power of war and peace in executive hands." 5
In examining the Articles of Confederation, one should not place
too much emphasis on its allocation of war powers, because what the
document establishes resembles more of a treaty organization than a
national government. As Chief Justice John Marshall described the
Articles, "[t]he confederation was, essentially, a league; and congress
was a corps of ambassadors, to be recalled at the will of their
masters."346
Focusing on the Congress' primary difficulties in raising revenue,
the traditional approach to studying the Articles has focused on issues
of federalism. 47 The Articles, however, also make for an interesting
study of the separation of powers, or lack thereof, particularly in the war
powers context. Scrutinizing the predecessor to the Constitution shows
that Congress under the Articles served as an executive, rather than a
legislative, body. As the provisional government of the independent
states, Congress assumed the former imperial powers of the King, while
the state assemblies retained their authority over legislative powers such
as taxation. The Articles provide support for the conclusion that war
was primarily an executive, rather than legislative, function.
The drafters of the Articles vested all war powers in the Continental
Congress. Article 9 stated that Congress had "the sole and exclusive
right and power of determining on peace and war."'
Congress also
had the sole authority
[of] entering into treaties and alliances ...of establishing rules
for deciding in all cases what captures on land or water shall be
345. Bestor, supra note 2, at 568; see also Berger, supranote 13, at 33.
346. John Marshall, "A Friendof the ConstitutionEssays," ALEXANDRIA GAZETTE, June 30-July
16, 1819, reprintedin JOHN MARSHALL'S DEFENSE OF MCCULLOCH V.MARYLAND 155, 199 (Gerald
Gunther ed., 1969); see also Akhil R. Amar, The Consent of the Governed: ConstitutionalAmendment
Outside Article V,94 COLUM. L REv. 457, 465 (1994) ("[The Continental Congress] was merely an
international assembly-of ambassadors, sent, recallable, and paid by state governments with each
state casting a single vote as a state.").
347. John Jay, Alexander Hamilton, and James Madison devoted the first thirty-one papers of the
The Federalistto criticizing the faults of the Articles' system. Concerns about foreign policy issues
were likewise central to the Framers. See FREDERICK W. MARKS II1, INDEPENDENCE ON TRIAL:
FOREIrN AFFAIRS AND THE MAKING OF THE CONSTITUTION 3-51 (1986).
348. ARTICLES OF CONFEDERATION art. 9 (1777) (emphasis added).
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THE CONTINUATION OFPOLITICS
legal, and in what manner prizes taken by land or naval forces in
the service of the United States shall be divided or appropriated;
of granting letters of marque and reprisal in times of peace. 9
Article 9 also vested Congress with the authority to appoint and commission all military officers and the powers "to build and equip a navy;
to agree upon the number of land forces, and to make requisitions from
each State for its quota."35°
The Articles required that nine states assent before Congress could
"engage in a war," ".grant letters of marque and reprisal" in peacetime, enter into treaties, fund an army and navy, or appoint a commander in chief.3 5' At the same time, the Articles prohibited the states
from exercising war powers individually, subject to certain exceptions.
Article 6 declared that "[n]o state shall engage in any war" without
congressional consent, unless it was "actually invaded by enemies," or
it knew of an Indian attack so imminent that seeking congressional approval would result in dangerous delay.3 52 No state could "grant commissions to any ships or vessels of war, [or] letters of marque or reprisal,
except it be after a declaration of war by the United States," unless it
"be infested by pirates."353 No state could maintain warships or standing armies without congressional permission during peacetime.
At first glance, it might appear that Article 9's catalogue of powers
demonstrates an intent to vest all war powers in a legislature. This
reading might suggest an understanding of war powers as legislative, or
at least not executive, in nature. Some legal historians have argued that
the drafters of the Articles reacted against the British allocation of war
authority to the executive, and that they located the war powers in the
4
legislature specifically to prevent the creation of a despotic executive.3M
However, the Congress of the Articles was not the Congress of the
Constitution. The Continental Congress did not play the role of a legislative body as we understand it today. Rather, the Congress had judicial, legislative, and executive functions more typical of a treaty
organization than a sovereign government. The structure of Article 9,
which enumerated Congress' powers, bears this out. It begins by giving
Congress traditional executive powers-such as the powers to decide on
war and peace and appoint government officials. It then gives Congress
judicial powers, declaring that it shall act as an appellate court of last
resort for inter-state disputes. Only after listing the executive and judi349.
Id.
350.
Id.
351.
Id.
352.
Id. art. 6.
353.
Id.
354.
See FISHER, supranote 1, at 2-3; Berger, supra note 13, at 32-33; Bestor, supra note 2, at
568.
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[Vol. 84:167
cial powers does Article 9 proceed to those legislative powers most
analogous to the Constitution's Article I, Section 8. Thus, the latter
portion of Article 9 gives Congress the authority to coin money, fix
weights and measures, establish post offices, and appoint officers and
make rules to regulate the military. Article 9 vested executive, legislative, and judicial powers in Congress because Congress was all three
branches of government wrapped up in one.
We should think of the Continental Congress as an executive and
administrative body first, and as a legislature second. Congress did not
have powers that the revolutionaries normally associated with a legislature, such as the authority to regulate trade or to levy taxes.355 These
powers remained with the individual states, which retained "every
Power, Jurisdiction and right" not expressly delegated under the
Articles. Instead of acting as a legislature, the Continental Congress replaced the King as the imperial executive authority in the colonies. As
one historian has concluded, "the executive and administrative responsibilities that had been exercised by or under the aegis of the king's authority were confided to the successor to his authority, the Congress." '56
Thus, when the Congress exercised its war powers, it acted as an
executive branch, rather than as a legislature-at least this was the
understanding that the Framers of the Constitution shared.357 This explains why the Framers of the Articles used Blackstone's language
describing the King's prerogatives in war and foreign affairs when they
allocated powers to Congress. Conversely, the legislative powers held by
Parliament remained firmly in the hands of the state assemblies.358
"[T]he legislative powers of Parliament tended to devolve upon the
states, while the executive powers of the crown passed to Congress,
which we should probably conceptualize as more of a plural executive
355.
See generally THE
FEDERALIST
Nos. 11-13, supra note 304, at 65-83 (Alexander
Hamilton).
356. JERRILYN GREENE MARSTON, KING AND CONGRESS: THE TRANSFER OF POLITICAL
LEGITIMACY, 1774-76, at 303 (1987); see also JENNINGS B. SANDERS, EVOLUTION OF THE
EXECUTIVE DEPARTMENTS OF THE CONTINENTAL CONGRESS 1774-87 (1935); Eugene R. Sheridan &
John M. Murrin, Introduction to CONGRESS AT PRINCETON: BEING THE LETTERS OF CHARLES
THOMSON TO HANNAH THOMSON, JUNE-OcrOBER 1783, at xxxiv-xxxviii (Eugene R. Sheridan &
John M. Murrin eds., 1985).
357. For example, in the Constitutional Convention, Charles Pinckney of South Carolina said that
he "was for a vigorous Executive but was afraid the Executive powers of [the existing] Congress
might extend to peace & war &c which would render the Executive a Monarchy, of the worst kind,
towit an elective one." 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 64-65 (Max
Farrand ed., 1911) [hereinafter FARRAND].
358. MARSTON, supra note 356, at 304. The ineptness of the Congress in exercising what
meager legislative powers it had rose to such levels that it often could not acquire a quorum to vote.
See RICHARD B.
MORRIS, THE FORGING OF THE UNION
1781-1789, at 91-95 (1987).
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THE CONTINUATION OF POLITICS
than a legislature," observe historians Eugene Sheridan and John
Murrin.359
Hence, the story of the Continental Congress is a tale of failed attempts to organize its executive, not legislative, power. Problems arose
not only because of the weaknesses of Congress' substantive powers in
foreign relations, but also because of defects in its internal structure. At
first, Congress conducted its war and foreign policies by committee,
which led to haphazard and sometimes disastrous results." ° Recognizing that the key to reform lay in structural changes, Congress in 1781
created executive departments under the control of individual ministers
for war, foreign affairs, navy, and finance. 6' But even executive reorganization failed to cure matters, as Congress still lacked the legislative
authority to tax and to fund armies directly. It was these defects that
would lead to demands for a new Constitution.
The story of the Articles also sheds light on the meaning of a declaration of war. Although it did not expressly grant Congress the
authority to declare war, the Articles appear to assume that the
war-declaring power was subsumed in the general power to decide on
questions of war and peace. Other parts of the Articles show that the
revolutionaries viewed this power primarily as one that defined the legal
status of, and relationships between, American citizens and those of hostile nations under international law. Nor did the Articles contain an explicit provision requiring a declaration of war before the federal
government could begin military operations.362
Consider, for example, that the declaration of war did play an important purpose in restricting the military operations of the independent
states. Article 6 states:
[N]or shall any State grant commissions to any ships or vessels
of war, nor letters of marque or reprisal, except it be after a declaration of war ...against the kingdom or State, and the subjects thereof, against which war has been so declared, and under
such regulations as shall be established by the United States in
Congress assembled ....
363
This prohibition on state naval action without a declaration of war
bears some interpretive significance for our study. First, like South
359. Sheridan & Murrin, supranote 356, at xxxiv. Richard Morris portrays a Congress, that for
all its bungling, vigorously exercised the executive powers of the sovereign United States. See
MoRRIs, supranote 358, at 95-110.
360. See generally GEORGE C. WOOD, CONGRESSIONAL CONTROL OF FOREIGN RELATIONS
DURING THE AmERICAN REVOLUTION 1774-1789 (1919).
361. See JACK N. RAKOvE, THE BEGINNINGS OF NATIONAL POLITICS: AN INTERPRETIVE
HISTORY OF THE CONTINENTAL CONGRESS 198-205 (1979).
362. See ARTICLES OF CONFEDERATION art. 9 (1781).
363.
Id. art. 6 (emphasis added).
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Carolina's Constitution, it serves as an example of a path not taken by
the Framers. If the delegates to the Constitutional Convention had
wanted to prohibit the President from initiating hostilities with another
nation, they could have borrowed Article 6 and adjusted it to apply to
the federal executive as well. Second, Article 6 suggests that the drafters
of the Articles understood the declaration of war's core purpose to be
one relevant to international law. The declaration acted as a permission
slip for the states to initiate hostile activities, but only against identified
enemies. Without a declaration of war, international law would consider
such naval attacks as acts of piracy, rather than as legitimate combat under the laws of war. In short, the declaration of war clothed what would
have been an illegal act by the states-sending warships against another
nation-with a legal status in international law.
Article 6 is also significant because it presents a neat contrast with
Article 9's grant of war powers to Congress. Article 9 gave Congress
the authority to decide on war and peace as well as the power to raise an
army and navy. However, Article 9's provision, unlike Article 6's restrictions on the states, did not require Congress to issue a declaration of
war before it initiated hostilities. Nor did Article 9 require a declaration
of war before Congress raised a military force or authorized naval attacks. If the Articles' drafters had wanted to make a declaration of war
an exclusive trigger for military operations, they certainly knew how to
do it, for they included such a provision in Article 6's prohibitions on
the states.
In conclusion, we might fairly say that the Articles were part of the
tradition of war powers that began in England in the 1620s and continued through to the American states in the 1780s. From the seventeenthcentury struggles between King and Parliament emerged a stable system
supported by two pillars: executive initiative in the commencement and
management of war, and legislative participation by means of the funding and impeachment powers. Courts did not interfere in war powers
issues because the declaration of war substituted for a judicial declaration of a state of war. As a fundamental element of the British
Constitution, this arrangement naturally characterized the institutional
relationship between the royal governors and colonial assemblies. Once
freed from the English yoke, the newly independent states experimented
with efforts to curtail the structural independence of the executive
branch, but left intact the substantive allocation of war powers between
the branches.
This history formed the relevant context for the Framers who gathered in Philadelphia in the summer of 1787. They saw the dangers
created when legislative controls weakened the executive, and they witnessed in New York, Massachusetts, and New Hampshire the promise of
1996]
THE CONTINUATION OF POLITICS
an independent, unitary governor wedded to the traditional AngloAmerican system of war powers. They also had before them the
alternative paths, such as requiring legislative approval of military action
or consultation with a council before engaging in war. Now that we
comprehend what the Framers inherited from their English and colonial
experiences, and imagine what they could have done differently, we can
begin to understand what they eventually established in the new
Constitution.
IV
THE NEW CONSTITUTION
Meeting in Philadelphia in the summer of 1787, the delegates to
the Constitutional Convention devoted more of their energies toward
creating a strong national government than toward detailing its precise
internal organization. Beyond establishing the existence and general
functions of the three branches, the Framers did not set down in writing
the exact allocation of authority between the executive, legislative, and
judicial branches. This silence might indicate that the Framers intended
to leave to future Presidents, Congressmen, and Justices the freedom to
work out the separation of powers for themselves. Alternatively, silence
might indicate an intent to continue practices and relationships between
the branches that were so widely understood as to need no specific description. This Section will show that both interpretations partially explain the Framers' approach. In establishing war powers, the Framers
intended to adopt the traditional system they knew-executive initiative
in war combined with a legislative role via the spending power. Yet, this
very arrangement left the precise boundaries of war powers unfixed and
subject, in each case, to the exercise of each branch's constitutional
powers. In effect, the Framers demarcated a gray area in which the
President and Congress could either cooperate in war or engage in an
inter-branch brawl to achieve their desired goals.
In reinterpreting the Constitution's meaning, this Section examines
several overlooked debates and reveals a more subtle approach to the
separation of powers issues than has been put forth before by contemporary war powers scholarship. This Section also analyzes the arguments-both in the state conventions and in the press-that took place
during the Constitution's ratification. We examine the AntifederalistFederalist debates on the Constitution in a dynamic fashion to provide a
clearer model of war powers.
This Section demonstrates a framework different from the straw
man of unchecked executive discretion. Under the Framers' ideal, war
would begin by the joint decision of President and Congress, each complementing the other branch's powers to ensure the efficient decision
CALIFORNIA LAW REVIEW
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on, and conduct of, war. However, the Framers realized that war could
spring forth by accident or emergency, or in the midst of dissension
among the branches. Because they did not intend the Constitution to be
a suicide pact, the Framers permitted the executive to undertake the initiative in war, subject to legislative review during the appropriations
process.
A. The ConstitutionalText in Context
Our analysis begins with the constitutional text. In order to understand what the Constitution requires, we must place its text in the legal
context of its day. Those who ratified the Constitution would not have
understood its provisions in a vacuum, but instead would have compared
and contrasted the document with both their legal understanding of the
words and their understanding of how these provisions operated in the
world of the eighteenth century. This Section concludes that the war
powers provisions of the Constitution are best understood as an adoption, rather than a rejection, of the traditional British approach to war
powers.
1.
The Declare War Clause
The Framers included the declaration of war in the Constitution as
a device to facilitate the federal government's representation of the nation in international affairs, and to make clear that the declaration of war
was a power of the national government, not the state governments. As
we have seen, a declaration of war performed a primarily juridical function under eighteenth-century international law, and it was this understanding that the Framers drew upon in giving Congress the authority to
declare war. Critics, however, have misinterpreted it as primarily a separation of powers vehicle.
As we have seen, in the eighteenth-century mind, a declaration of
war was not the same thing as a domestic authorizationof war. In fact, a
declaration of war was understood as what its name suggests: a declaration. Like a declaratory judgment, a declaration of war represented the
judgment of Congress, acting in a judicial capacity (as it does in impeachments), that a state of war existed between the United States and
another nation. Such a declaration could take place either before or
after hostilities had commenced. While the power to "declare" war
adds to Congress' store of powers, it does little to alter the relative domestic authorities of the executive and legislative branches. Its primary
function was to trigger the international laws of war, which would clothe
in legitimacy certain actions taken against one's own and enemy citizens.
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This was the meaning attributed to a declaration of war by seventeenth and eighteenth-century scholars on the laws of nations. The
works of Hugo Grotius,'" Emmerich de Vattel,365 Jean Jacques
Burlamaqui,366 and Samuel Pufendorf367 exerted a greater influence on
the minds of the Framers than the articles of today's "publicists" do on
today's lawyers. In part, the revolutionary generation relied on English
and continental legal authorities due to the disorganized nature of the
colonial and early American legal systems. 6
We can also understand the appeal of international law to Americans then-perhaps in contrast to today-when we consider America's
place in the world of 1787. As The Federalistshows, the Framers remained ever-conscious of their nation's relative youth and vulnerability
on the world stage. John Jay, the most prominent and respected of the
Publius triumvirate, devoted his inaugural installments of The Federalist
to the possibility that the European powers would divide and conquer
the new nation, or frustrate its attempts to grow in territory and commerce. 69 As the impressment controversy with Great Britain later would
reveal, the new American nation often had to turn to international law,
rather than military strength, to support its national interests. 70 Two
ago, Americans were the Melians more often than the
hundred years
371
Athenians.
In this context, it is not surprising that Madison, in The Federalist
No. 41, made no mention of separation of powers concerns when discussing the Declare War Clause. Rather, the Clause was designed to allow the national government to provide "[s]ecurity against foreign
danger," "one of the primitive objects of civil society. 372 Because
protection against foreign danger "is an avowed and essential object of
the American Union," Madison continued in No. 41, "[t]he powers
requisite for attaining it, must be effectually confided to the federal
See GROTIUS, supra note 208.
See 2 VATTEL, supra note 207.
See J.J. BURLAMAQUI, THE PRINCIPLES OF NATURAL AND POLITIC LAW (trans. 1817).
See SAMUEL PUFENDORF, OF THE LAW OF NATURE AND NATIONS (1688).
See Yoo, supra note 160, at 1610-11; see also WILLIAM E. NELSON, AMERICANIZATION OF
THE COMMON LAW: THE IMPACT OF LEGAL CHANGE ON MASSACHUSETTS SOCIETY, 1760-1830
(1975); WOOD, supra note 175, at 298-302. In reading the ratification debates, one cannot help but
be impressed by the Framers' intimate knowledge of the classical authors such as Tacitus, Livy,
Cicero, and Sallust as well as more recent writers such as Blackstone, Locke, and Montesquieu.
369. See THE FEDERALIST Nos. 2-5, supra note 304, at 8-27 (John Jay). On the Framers'
national security concerns and the passage of the Constitution, see MARKS, supra note 347, at 3-51.
370. For a wonderful and rich account of the American problems with impressment and
international law, see generally Ruth Wedgewood, The Revolutionary Martyrdom of Jonathan
Robbins, 100 YALE L.J. 229 (1990).
371. See 5 THUCYDIDES, THE PELOPONNESIAN WAR ch. 7 (trans. 1951).
372. THE FEDERALIST No.41, supranote 304, at 269 (James Madison).
364.
365.
366.
367.
368.
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councils."373 Declaring war under international law was one vital national security power that any truly national government had to possess.
There is ample evidence that European theories of international law
made their way into American thought and practice. As mentioned
earlier, Blackstone, the colonists' foremost legal authority, often directly
borrowed from the likes of Grotius and Vattel. Federalists and
Antifederalists alike repeatedly referred to and discussed international
law theories and concepts. The revolutionary state constitutions and the
Articles of Confederation referred specifically to the declaration of
4
war.
37
The Framers turned to international law to define phrases such as to
"declare war" because it was international law (and international politics) which gave these powers meaning. Consistent with Chief Justice
John Marshall's holding in The Schooner Charming Betsy37 that international law serves as a canon for statutory construction, it is appropriate
to use international law as a canon of construction in the constitutional
context. For example, in explaining the piracy clause to the Virginia
ratifying convention in 1788, James Madison described that the clause
3 76
incorporated international law understandings.
American jurists in the decades following the ratification of the
Constitution continued to interpret the declaration as a notification
mechanism that defined the wartime rights of citizens and neutrals.
Writing after 1789, Chancellor Kent described the declaration of war
thus:
[S]ome formal public act, proceeding directly from the competent source, should announce to the people at home, their new
relations and duties growing out of a state of war, and which
should equally apprize neutral nations of the fact, to enable them
to conform their conduct to the rights belonging to the new state
of things.... Such an official act operates from its date to le373. Id. Scholars of war powers often neglect the surrounding context of The FederalistNo. 41,
and are instead transfixed by the language stating the necessity of the Declare War Clause.
Unfortunately, this practice of selective quotation makes the Clause appear to be a separation of
powers provision, when its context clearly shows it to be a federalism provision.
374. See supratext accompanying notes 283-363.
375.
6 U.S. (2 Cranch) 64, 118 (1804); see Ralph G. Steinhardt, The Role of InternationalLaw as
a Canon of DomesticStatutory Construction,43 VAND. L. REV. 1103, 1135-79 (1990).
376. 3 ELLIOT, supranote 119, at 531.
In compositions of this kind, it is difficult to avoid technical terms .... I will illustrate this by
one thing in the Constitution. There is a general power to provide courts to try felonies and
piracies committed on the high seas. Piracyis a word which may be considered as a term
of the law of nations. Felony is a word unknown to the law of nations, and is to be found in
the British laws, and from thence adopted in the laws of these states. It was thought
dishonorable to have recourse to that standard. A technical term of the law of nations is
therefore used, that we should find ourselves authorized to introduce it into the laws of the
United States.
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THE CONTINUATION OFPOLITICS
galize all hostile acts, in like377manner as a treaty of peace operates
from its date to annul them.
In his Commentaries on the Constitution, Justice Story similarly discussed the declaration of war for its impact on domestic legal relation-
ships.
78
Thus, Americans of the eighteenth century would have understood
that the power to declare war dealt with setting the formal, legal relationship between two nations, and not with authorizing real hostilities. Once
war was declared, a citizen of the United States could seize a ship flying
French colors regardless of the state of relations between the two na-
tions. However, if Congress has not declared a state of hostilities, the
citizen must return the ship and pay damages; if a declaration has issued, he may sell the ship as a prize.3 79 But in neither case is a declaration of war necessary to "authorize," ex ante, the seizure of the ship.
Of course, in legitimating hostilities, this core function of a declaration of war could be thought to "authorize" war by justifying federal
wartime policies. Because the declaration of war has a primary domestic
effect of notifying the citizens of their new rights and obligations, it
grants the government a different standard of conduct in relation to
those rights and duties. Thus, a declaration of war would permit the
government to treat its citizens in a way that restricted peacetime liber-
ties in favor of a more effective war effort. The Fifth Amendment, for
example, generally guarantees the right to an indictment or presentment
by grand jury for capital crimes, "except in cases arising in the land or
naval forces, or in the Militia, when in actual service in time of War or
377. 1 KENT,supra note 250, at 54. Kent notes that during the French-Indian War of 1756, "vigorous hostilities had been carried on between England and France for a year preceding" any declaration of war. 1 id at 53-54. Kent used the example to point out that going to war and a declaration
of war are two different things.
378. According to Story:
[lIn the exercise of such a prerogative as declaring war, despatch, secrecy, and vigor are
often indispensable, and always useful towards success. On the other hand, it may be urged
in reply, that the power of declaring war is not only the highest sovereign prerogative, but
that it is, in its own nature and effects, so critical and calamitous, that it requires the utmost
deliberation, and the successive review of all the councils of the nation. War, in its best
estate, never fails to impose upon the people the most burdensome taxes, and personal
sufferings. It is always injurious, and sometimes subversive of the great commercial,
manufacturing, and agricultural interests. Nay, it always involves the prosperity, and not
unfrequently the existence, of a nation.
2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1171 (1873).
Justice Story went on to describe the power to declare war as a legislative power, because "[the
representatives of the people are to lay the taxes to support a war, and therefore have a right to be
consulted as to its propriety and necessity." 2 id. He also believed that "[the executive is to carry it
on, and therefore should be consulted as to its time, and the ways and means of making it effective."
2 id. I think that Story here is again referring to legislative control over the domestic effects of war,
rather than to warmaking. In discussing the reason for giving the legislature the power to declare
war, Story refers only to a domestic function: raising taxes.
379. See Little v. Barreme, 6 U.S. (2 Cranch) 170, 178-79 (1804).
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38
public danger.""
In time of war, Congress may authorize seizure of
property belonging to foreigners without the need for compensations as
required by the Takings Clause.3"' During the Quasi-War, Federalists
clamored for a declaration of war against France, because it would allow
the passage at home of broad sedition laws, higher taxes, an expanded
peacetime army, and other war measures.382 Thus, a declaration of war
had a domestic function, which permitted new government actions in
light of the changed legal status of its citizens.383 A declaration of war
did not grant permission for executive action abroad, as we would expect of an "authorization" of war, but only set the stage for the exercise of domestic wartime powers, primarily by Congress.
This interpretation of "declare" war is also compatible with the
Framers' understanding of the power to declare as applied in other
contexts.3 A declaration did not create or authorize; it recognized.
Most Americans in 1787 would have been familiar with the declarations
of rights that prefaced their state constitutions. These declarations did
not create or authorize rights by positive enactment. Instead, they declared what rights existed and were inherent in the People, such as the
right to alter and reform government. Similarly, a declaration of war
announced Congress' judgment that a legal state of war exists between
the United States and another country. The declaration gave legitimacy
to hostile acts which would be illegal in a time of peace.
The Framers were also familiar with the declaratory nature of the
Declaration of Independence. When the Continental Congress convened in Philadelphia in the summer of 1776, the delegates were not
meeting to authorize military action; the machinery of war had already
started running.385 Instead, the delegates sought to decide what legal
significance they were to give to the break with England. While containing a catalogue of individual rights and of new sovereign powers, the
work of the Continental Congress resembles the traditional British declaration of war more than a declaration of rights. Much like a complaint in a civil lawsuit, the Declaration of Independence revisits the
380.
U.S. CONsT. amend V; cf. Reid v. Covert, 354 U.S. 1, 22 (1957) (holding that civilian
dependents who accompany military personnnel to foreign countries are entitled to a jury trial for
capital crimes).
381. See Brown v. United States, 12 U.S. (8 Cranch) 110, 127-29 (1814).
382. See RICHARD H. KOHN, EAGLE AND SwORD: THE FEDERALISTS AND THE CREATION OF
THE MILITARY ESTABLISHMENT IN AMERICA, 1783-1802, at 227-29 (1975).
383. See generally J. Gregory Sidak, War, Liberty, and Enemy Aliens, 67 N.Y.U. L REv. 1402
(1992).
384. See, e.g., John C. Yoo, Our Declaratory Ninth Amendment, 42 EMORY LJ. 967, 970-99
(1993).
385. Representatives of the colonies had first met in 1774 to adopt a non-importation policy on
British goods. After various colonies called out their militias, hostilities broke out on April 19, 1775,
first at Lexington and Concord and later at Bunker Hill. See generally BERNARD BAILYN ET AL,,
THE GREAT REPUBLIC
(1977).
1996]
THE CONTINUATION OFPOLITICS
"history of repeated injuries and usurpations 31 6 suffered at the hands
of the Crown-the suspension of the laws, the use of bench trials, the
taxation without representation-and the failed efforts at reconciliation.'" It lists the remedy sought (independence), the law upon which
relief is sought ("the Laws of Nature and of Nature's God"), and the
forum (before the "Supreme Judge of the world"). 88 The Declaration
of Independence did not simply mirror British declarations of war,
which usually included a detailed list of grievances, what relief was
sought, and a description of the hostilities. 9 It was also consistent with
the contemporary understanding of the nature of war, described by
Grotius and other international scholars as a system of interstate dispute
resolution," ° in which the declaration served the function of a complaint. War was as much a legal status as an act, with the declaration's
primary purpose to define the change in legal relationships between
states.
The Framers' belief that a declaration of war was unnecessary when
a nation was under attack provides further evidence that declarations of
war were legally formal, or even ceremonial, in purpose. Consistent with
the theory of international law that a declaration of war was unnecessary
for a nation under attack,39 ' future Supreme Court Justice James Iredell,
under the pseudonym "Marcus," argued, "What sort of a government
must that be, which, upon the most certain intelligence that hostilities
were meditated against it, could take no method for its defence, till after
a formal declaration, of war, or the enemy's standard was actually fixed
'
upon the shore." 392
Iredell and other Federalists, such as Alexander Hamilton, who
made the same argument in The FederalistNo. 25,111 saw that an inva386.
THE DECLARATION OF INDEPENDENCE
para. 2 (U.S. 1776).
387. Id. paras. 3-4, 19-20, 30-31.
388. Id. paras. 1, 32.
389. See, e.g., 11 COBB'T'S PARLIAMENTARY HISTORY OF ENGLAND 1-3 (1812) (declaration
of war against Spain on November 15, 1739).
390. See Benedict Kingsbury & Adam Roberts, Introduction to HUGO GROTIUS AND
INTERNATIONAL RELATIONS 16 (Hedley Bull et al. eds., 1990).
391. See, e.g., BURLAMAQUI, supra note 366, pt. IV, ch. IV, para. XVII, at 361-64.
392. James Iredell ("Marcus"), A System of Government Which I Am Convinced Can Stand the
Nicest Examination:Answers to Mason's "Objections," NORFOLK & PORTSMOUTH J., Mar. 12, 1788,
reprinted in I DEBATE ON THE CONSTITUTION, supranote 16, at 384, 392-93.
393. THm FEDERALIST No. 25, supranote 304, at 161 (Alexander Hamilton) ("As the ceremony
of a formal denunciation of war has of late fallen into disuse, the presence of an enemy within our
territories must be waited for as the legal warrant to the government to begin its levies of men for the
protection of the State."). Hamilton's views on the war powers changed before and after the
adoption of the Constitution. Compare I FARRAND, supra note 357, at 292 (Hamilton's proposed
frame of government in the Constitution Convention) with Alexander Hamilton, Pacificus No. 1.
reprinted in 15 PAPERS OF ALEXANDER HAMILTON, supra note 123, at 33. However, his view that
defensive wars required no declaration of war remained consistent. See Alexander Hamilton, The
Examination No. 1,reprinted in 25 id at 444, 453-57.
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sion, or even the threat of attack, converted peacetime into wartime just
as easily as a declaration of war. Under international law, by its act of
invasion, the offensive nation effectively transformed the legal relationship between the two nations into one of war, rendering a declaration of
war by the defending nation superfluous. A declaration of war only
recognized the existing state of war, and was unnecessary for the commencement of hostilities by the invaded nation. In defending the federal government's power to counter hostilities by others without a
declaration of war or actual attack, the Framers' thoughts reflected the
teachings of the international law of the time.
A declared "war" bore a specific meaning which we today would
associate with total war. Burlamaqui called such wars "perfect". wars
because they "entirely interrupt the tranquility of the state, and lay[] a
'
foundation for all possible acts of hostility."394
"Imperfect" wars were
395
less than total wars, like the covert or limited wars, such as the Vietnam
and Korean conflicts.
The Framers' understanding that declarations of war were not required to authorize combat was expressed during the ratification period.
For example, Alexander Hamilton noted in The Federalist,"The ceremony of a formal denunciation of war has of late fallen into disuse ...."396 Other Framers, both Federalist and Antifederalist, echoed
Hamilton's judgment that declarations of war had become obsolete in
an era of great power conflict.3 This understanding endured beyond
the framing of the Constitution. In 1833, Joseph Story wrote that
"formal declarations of war are in modem times often neglected, and
are never necessary. '3 98 To read the Declare War Clause as requiring
Congress to issue an outmoded declaration of war before the nation
could commence hostilities would have seemed foolhardy, if not misguided, to an American of the eighteenth century.
Interpreting "declaration" to mean a judgment of a current status
of relations, not an authorization of war, provides a new understanding
of Congress' role in war, one which is not purely legislative. We should
conceptualize the war clause as vesting the legislature with a judicial
function, which involves a capacity for judgment in the manner of a
394. BURLAMAQUI, supra note 366, pt. IV,ch. III, para. XXX, at 333. In the early case of Bas
v. Tingy, the Supreme Court held that such limited wars did not require a declaration of war by
Congress. 4 U.S. (4 Dall.) 37; 39-40 (1800). According to the Court, Congress could decide to wage
such wars if it chose to without a declaration, although none of the Justices examined whether the
President could do so as well. 2 id At the very least, this evidence of the original understanding
suggests that the declaration of war clause did not operate in less than "total" war situations.
395. BURLAMAQUI, supra note 366, pt. IV,ch. III, para. XXX, at 333.
396. THE FEDERALIST No. 25, supra note 304, at 161 (Alexander Hamilton).
397. See, e.g., Brutus, EssayX, N.Y. J., Jan. 24,1788, reprintedin 2 STORING, supra note 114, at
413, 415; Iredell, supra note 392, at 393.
398. 2 STORY, supra note 378, at § 1185.
1996]
THE CONTINUATION OFPOLITICS
court, rather than the enactment of positive law in the style of a legislature. Formally vesting one branch of government with powers that another branch inherently ought to exercise did not trouble the Framers.
They gave the President the right to veto legislation, which they thought
of as a legislative power; they gave the President and the Senate the
power to enter into treaties, which they also believed to be a legislative
function."l Thus, in discussing the.treaty power, Publius argued that
"4whatever name be given to the power of making treaties... certain it
is that the people may with much propriety commit the power to a disIt is this
tinct body from the legislature, the executive or judicial."'
formal mixing of powers that underlies Madison's famous argument in
The FederalistNo. 47 that the departments of government might have a
"partial agency in, or... controul over the acts of each other."" 1
Thinking of Congress as exercising judicial functions comes more
easily when we consider that Article I already vests the legislature with
the power of impeachment. Impeachment requires the Senate to act as
As the Supreme
nothing less than a court of first and last resort.'
3
Court implicitly recognized in Nixon v. United States," the Constitution
vests Congress with a judicial function in impeachment, thereby precluding the federal courts from subsequent review. Although the Court
in Nixon did not make the connection suggested here, and instead relied
upon the political question doctrine, it reached the correct result because
the Constitution already vests all judicial power over impeachments to
Congress. In other words, the Court could not permit itself to review
impeachment proceedings because to do so would vest Article III courts
with appellate jurisdiction in derogation of the Senate's own judicial
powers.
Analogizing to impeachment supports the legitimacy of the Article
III courts' refusal to review war powers cases. Because the Constitution
has vested Congress with the entire judicial power to decide whether the
United States is in a state of war, no role for the courts is warranted. To
be sure, the courts may still adjudicate cases that involve the ramifications of the nation's wartime or peacetime status, such as insurance cases
But the Constitution's allocation of the
that have wartime clauses.'
power "to declare war" in Congress divests the courts of any judicial
399. See THE FEDERALIST No. 73, supra note 304, at 494-99 (Alexander Hamilton) (executive
may exercise legislative veto power); No. 64, at 432-38 (John Jay) (executive and Senate may
exercise legislative treaty power).
400. TIE FEDERALIST No. 64, supranote 304, at 436 (John Jay).
401. THE FEDERALIST No. 47, supranote 304, at 325 (James Madison) (emphasis omitted).
402. See CHARLES L BLACK, JR., IMPEACHMENT: A HANDBOOK, 9-14 (1974).
403. 113 S. Ct. 732,735-39 (1993).
404. For example, American courts have decided insurance cases which demand the
interpretation of war-risk clauses. See John H. Ely, Suppose Congress Wanted a War Powers Act
That Worked, 88 COLUM. L REv. 1379, 1409 & n.88 (1988).
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power in war, just as the impeachment clause deprives the courts of any
involvement in impeachments. The courts simply must accept the actions of the political branches in war matters as valid indications of
whether a state of war exists.4 °5
2. Other Constitutional War Powers Provisions
If we read the text of the Declare War Clause in this way, then other
provisions in the Constitution gain in significance for discerning the
structure of war powers. The war clauses' juridical function becomes
even clearer when we examine the clauses' textual companions in the
Constitution.
a. Other Formal CongressionalPowers
Article I, Section 8, Clause 11 not only gives Congress the power
to declare war but also the authority to "grant Letters of Marque and
Reprisal, and make Rules concerning Captures on Land and Water."
These powers are similar to that of declaring war in that defining "rules
of Capture" is a declaratory function, rather than an authorizing one.
Letters of marque and reprisal also played a formal legal role in both
the English and international law of the time. A government could issue
such letters only to private citizens who held a claim against another
state and could not obtain compensation. The letters gave legal sanction
to attempts at redress by seizing the property of the other nation, and
saved capturers from being considered pirates under international law.
As Blackstone explained, "letters of marque and reprisal (words in
themselves synon[y]mous and signifying a taking in return) may be
obtained, in order to seise the bodies or goods of the subjects of the offending state, until satisfaction be made ....
Although letters of marque and reprisal first appeared in this form
in the Middle Ages, by the late eighteenth century their use appears to
have grown to encompass low-level conflicts between nations. The
English King could issue general, as well as limited, letters of marque,
which were given to armed trading ships and privateers to attack foreign
ships. Letters of reprisal referred generally to the use of force as retaliation for an injury caused by a foreign nation.4 Letters of marque
and reprisal thus came to refer to a mechanism of sovereign consent to
405. For a more detailed discussion, see infra text accompanying notes 548-558.
406. 1 BLACKSTONE, supra note 184, at *250-51; see 2 STORY, supra note 378, §§ 1175-76
(describing letters of marque and reprisal).
407. Jules Lobel, Covert War and CongressionalAuthority: Hidden War and Forgotten Power,
134 U. PA. L. Rnv. 1035, 1042-44 (1986); see 1 MATTHEW HALE, HisromA PLACITORUM
CORONAE: THE HISTORY OF THE PLEAS OF THE CROWN 162 (1736).
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THE CONTINUATION OF POLITICS
the use of private force against another nation, but it does not appear
that the phrase referred to all forms of imperfect war."
Some scholars, however, have interpreted the war clause to give
Congress control over all forms of war, whether they be total and declared, or limited and undeclared. 4O They read the marque and reprisal
provision, even though it refers specifically only to marque and reprisal
letters, as giving Congress control over all forms of hostilities short of a
declared war. Surely this goes too far, although it is quite true that
Blackstone and the international law scholars viewed such letters as a
species of undeclared war.41° Perhaps the better view is that the Framers
intended the Clause to give Congress control over these uses of private
force to conduct hostilities, because these situations would produce difficulties under domestic and international law. But reading the Clause
more broadly stretches the text too far. Letters of marque and reprisal
do not clearly refer to the use of the state's own military against another
state. If the Framers had intended to place strict regulations on the
public use of force in undeclared war situations, we can reasonably have
expected them to use more direct, relevant language to express their
meaning.
Regardless of the extent of hostilities referred to, the important
point remains that letters of marque and reprisal conveyed a certain
meaning at international law. Holders of letters of marque or reprisal
had a right, under international law, to attack or seize the person or
property of another nation, in order to recover a debt or satisfy an injury.4 1' Because international law prohibited hostilities waged by private
persons, states normally could treat such persons as pirates under international law or as robbers and murderers under municipal law. But if
the attacker possessed a letter of marque or reprisal, his actions received
the protections granted by international law to combatants. According
to Blackstone, who sometimes lifted passages on international law verbatim from Grotius, "if any subjects of the realm are oppressed in time
of truce by any foreigners, the king will grant marque in due form, to
all that feel themselves grieved."412 If the foreigner did not "make due
satisfaction or restitution," then "by virtue of these [letters,] [the subject] may attack and seise the property of the aggressor nation, without
hazard of being condemned as a robber or pirate."4 3 Thus, the letter
408.
See Lobel, supra note 407, at 1044-47.
LOFGREM, supra note 114, at 35-36; REVELEY, supranote 2, at 65.
410. See 1 BLACKSTONE, supra note 184, at *250 (letters evidenced "only an incomplete state of
hostilities, and generally ending in a formal denunciation of war").
411. See 3 GROTIUS, supranote 208, at ch. 2, pts. 4-5.
412. 1 BLACKSTONE, supra note 184, at *251.
413. 1id.
409.
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did not authorize the efforts to recover satisfaction so much as it immu414
nized offensive conduct a letter-holder undertook.
b. The President'sPowers
The signal innovation of the new frame of government, the presidency, would have caught the eye of any eighteenth-century reader.
Many Americans in a society still infused by hierarchical patterns of
social, political, and economic relations4 15 would have viewed the
President as, if not a King, at least a paternal figure vested with the duty
of protecting his fellow citizens.
This paternal vision of the President was consistent with the
Framers' knowledge that the office would be held first by George
Washington, the victorious Commander-in-Chief of the Continental
Army, the modem-day Cincinnatus who had laid down his arms after
the war and returned to life as a farmer. As Pierce Butler, a delegate to
the Philadelphia Convention, wrote afterwards, the powers of the
President were
greater than I was disposed to make them. Nor... do I believe
they would have been so great had not many of the members
cast their eyes towards General Washington as President; and
shaped their Ideas of the Powers to be given to a President, by
their opinions of his Virtue.4t 6
In discussing this phenomenon, Clinton Rossiter describes Washington's
record as pointing "toward unity, strength, and independence in the
executive. 11 7 "We cannot measure even crudely the influence of the
commanding presence of the most famous and trusted of Americans," 418 Rossiter concludes.
The Framers established the President's leadership role in war by
vesting the office with the commander-in-chief power. Americans of
the Framers' generation would have widely understood the commanderin-chief power as a continuation of the English and colonial tradition in
war powers. The state constitutions both expressed this understanding
and provided the relevant legal context for interpreting the new federal
Constitution.
Dissatisfied with the Continental Congress, leading
revolutionaries greatly admired the constitutions of New York,
Massachusetts, and New Hampshire, which as we have seen, vested the
414. As the Marshall Court found in its international law cases, the nature of the letter produced
a significant impact on the rights and liabilities of the parties to numerous maritime disputes. See 0.
EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815-1835, at 884-926 (1988).
415. See GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 43-56 (1991).
416. Letter from Pierce Butler to Weedon Butler (May 5, 1788), in 3 FARRAND, supra note 357,
at 301-02.
417. ROSSITER, supra note 318, at 222.
418. Id.
1996]
THE CONTINUATION OFPOLITICS
governor with expansive powers.419 In The Federalist, Alexander
Hamilton noted that the new Constitution owed a large debt to the
Massachusetts Constitution of 1780.420 He and his colleagues also
expressed high regard for the strong executive leadership exercised by
Governor Clinton under the New York Constitution of 1777, which was
the model for the Massachusetts Constitution's executive powers.4 2'
Massachusetts and New Hampshire's Constitutions, which embraced the
concept of a vigorous, independent executive in both war and peace,
informed the meaning of the federal Constitution's clauses on executive
power for Americans of the eighteenth century.
Thus, the meaning of the "Commander in Chief' language of
Article II can be fleshed out by Massachusetts and New Hampshire's
description of the Commander in Chief powers of their governors. Both
of these state constitutions granted to the Commander in Chief the
authority to fully control the military, and to use it to "kill, slay, and
destroy" by any appropriate means anyone who attempted or planned
to attack or even "annoy[]" the state. 41 Alexander Hamilton, in The
FederalistNo. 69, explicitly compared the governors' commander-inchief powers in those two states with that of the President's. Although
Hamilton suggested the possibility that the governors may have had
more power than the President because they were commanders in chief
of the navy as well as the army, he clearly indicated that the President's
command over the army was equal to that of the governors. 4n3 Reading
the proposed Constitution in the context of the state constitutions would
have come naturally to an eighteenth-century American, because, at the
time, the state texts constituted the only other documents that bore a
similar level of legal significance to the Constitution.424
419.
See supra text accompanying notes 311-340.
See Tim FEDERALIST No. 69, supranote 304, at 464 (Alexander Hamilton).
421. See THACH, supra note 294, at 37-40.
422. MAss. CONsT. art. VII (1780), reprintedin 3 THoRPE, supranote 271, at 1901; NJI CONsT.
(1784), reprintedin 4 id. at 2463-64. See supratext accompanying notes 321-323.
423. After cataloguing the powers of the President versus that of the King, Hamilton wrote:
[T]he Constitutions of several of the States, expressly declare their Governors to be the
Commanders in Chief as well of the army as navy; and it may well be a question whether
those of New-Hampshire and Massachusetts, in particular, do not in this instance confer
larger powers upon their respective Governors, than could be claimed by a President of the
420.
United States.
No. 69, supra note 304, at 465-66 (Alexander Hamilton).
THE FEDERALIST
Although it appears otherwise, Hamilton's statement may not actually reveal a belief that the
President's power ranks below that of the two governors. As we will see infra text accompanying
notes 521-523, Hamilton purposely, and I think misleadingly, disparaged the President's powers in an
attempt to deflect strong Antifederalist criticism. Furthermore, Hamilton only goes so far as to state
that the comparison is an open "question," which, at the very least, indicates that others probably
were making the association as well.
424. For examples of such overt comparisions, see, e.g., Tim FEDERALISTS No. 69, supra note
304, at 464 (Alexander Hamilton); No. 81, at 544-45 (same); No. 83, at 565-66 (same).
CALIFORNIA LAW REVIEW
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Provisions found in the state constitutions that were not included in
the Constitution also demonstrate the Framers' intent to create a strong
executive in the war powers arena. The Philadelphia delegates decided
to sweep state restraints on the executive into the dustbin of history.
The Constitution did not establish a council with joint control over the
military, nor did it require the President to seek legislative permission
before engaging the military.
Absent was any clause, such as that
adopted by South Carolina, which declared "[t]hat the governor and
commander-in-chief shall have no power to commence war, or conclude
peace" without legislative approval.'
Also absent were the limitations
imposed by legislative appointment of the executive, by limited opportunity for re-election, by lack of a veto power, or by multiple executive
officials. Rather, the Framers of the Constitution established a presidency whose unity and energy would give the executive branch
"[d]ecision, activity, secrecy, and dispatch. '426
A comparison of the state and federal constitutions also would have
suggested to an eighteenth-century American that the grants of war
powers to Congress mimicked the authorities exercised by the legislatures in England, the colonies, and the states. Congress' powers to
"raise and support Armies," to "provide and maintain a Navy," to
"make Rules for the Government and Regulation of the land and naval
Forces," to "provide for calling forth the Militia," and to "provide for
organizing, arming, and disciplining, the Militia, '4 7 initially would have
appeared as transfers of power from the states to the federal government. Closer examination also revealed these powers as checks which
prevented the President from raising and supporting his armies independently." Thus, while the powers to raise and support armies and to
425. S.C. CONsT. art. XXXIII (1778), reprinted in 6 THORPE, supra note 271, at 3255.
426. THE FEDERALIST No. 70, supra note 304, at 472 (Alexander Hamilton). As Rossiter has
described it, the Constitution created
a President [who] had a source of election legally separated if not totally divorced from the
legislature, a fixed term and untrammeled reeligibility, a fixed compensation (which could
be "neither increased nor diminished" while he was in office), immunity from collective
advice he had not sought (whether tendered by the Court, the heads of executive
departments, or a council of revision), and broad constitutional powers of his own. It would
be his first task to run the new government: to be its administrative chief, to appoint and
supervise the heads of departments and their principal aides, and to "take care" that the
laws were "faithfully executed." He was to lead the government in its foreign relations,
peaceful and hostile, and he was, it would appear, to be a ceremonial head of state, a
"republican monarch" with the prerogative of mercy.
ROSSITER, supra note 318, at 221.
427. U.S. CONST. art. I, § 8, cls. 12-16.
428. See 1 WILLIAM W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF
THE UNITED STATES 423-25 (1953). Crosskey, however, goes too far in arguing that these provisions
served only a separation of powers role. Clearly, they have both federalism and separation of power
purposes. It might be tempting, and even more convincing, to argue that the military powers
mentioned in Article I, Section 8 might have been intended to serve only a federalism role, but that
too would be taking the argument too far.
1996]
THE CONTINUATION OF POLITICS
regulate the military possessed a federalism purpose, they had a separation of powers function as well.
One final aspect of the Constitution's text is relevant for our inquiry. Not only did the Constitution allocate war-making authorities
between the branches of the federal government, it also imposed specific
prohibitions on the independence of the states in foreign relations. The
last paragraph of Article I, Section 10 states: "No State shall, without
the Consent of Congress... keep Troops, or Ships of War in time of
Peace, enter into any Agreement or Compact with.., a foreign Power,
or engage in War, unless actually invaded, or in such imminent Danger
'
as will not admit of delay."429
Given the purpose of a national government, the Constitution logically prevents the states from maintaining a
standing military, from entering into international agreements, and from
waging war. Some have interpreted Section 10 as implicitly recognizing
that the President could wage war unilaterally in the same emergency
situations-invasion or imminent danger-that the states could.'
This reading misses the Clause's greater significance for interpreting federal war powers. Section 10 demonstrates that when the Framers
wanted to prohibit the initiation of hostilities, they knew how to be quite
clear-thus the phrase "No state shall.., engage in war."43 ' If the
Framers intended to require congressional consent before war, they
again were perfectly capable of making their wishes known, as evidenced by the second and third paragraphs of Section 10, which begin,
'
"No state shall, without the Consent of Congress."432
Had the Framers
intended to prohibit the President from initiating wars, or to require him
to receive congressional approval beforehand, they easily could have
incorporated a Section 10 analogue into Article II. ("The President
shall not, without the Consent of Congress .... .") But the Framers
chose not to, and instead left the allocation of war powers intact.
We should resist the temptation to see innovation and novelty in
every constitutional clause. Of course, the Framers intended to alter
certain aspects of traditional Anglo-American forms of government.
But transferring the power to declare war from the executive to the legislature does not necessarily reflect a general desire to reallocate all of
the war powers. Instead, we should construe the Constitution's spare
language concerning war powers within the context of eighteenthcentury British, colonial, and state governments, which had employed a
system of executive initiative balanced by legislative appropriation. Ex-"
429.
430.
431.
432.
U.S. CONSr. art. I, § 10 (emphasis added).
See, e.g., ELY, supra note 1, at 7.
U.S. CONsr. art. , § 10 (emphasis added).
Id.
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amined in this light, the Constitution enacts a system that provides for
agreement between the branches, but allows for discord as well.
B. The ConstitutionalConvention and the Allocation of War Powers
Although the intent of those who drafted the Constitution may not
be conclusive, especially if that intent is not apparent from the text or
was not made known during ratification, such evidence can be relevant
in establishing the contemporary understandings of war powers. Statements and arguments made during the drafting of the Constitution support what is evident from the Constitution's text: the war clauses
establish a flexible system of war powers that does not give the legislature the predominant role suggested by today's scholars.433
Delegates came to Philadelphia to repair the defects of the Articles
of Confederation, including what they saw as an inability to provide a
sufficient defense against invasion." This weakness arose not because
the Congress was unable to initiate war, but because it had to rely on the
good faith of the states to raise and supply the military. The Framers
quickly corrected this problem by expanding federal powers in foreign
affairs at the expense of the states. The Constitution not only vested the
federal government with the power to raise, supply, and lead the national
military, but it also divested the states of the ability to maintain peacetime armies and to wage war.
While the Framers made clear that the national government, not the
states, should exclusively govern the nation's foreign affairs, when it
came to the allocation between the President and Congress, the Framers
did not seek to place complete power in one branch. Some Framers
initially hoped to place Congress at the forefront in decisions on war,
but this approach did not prevail. Rather, the provisions that they
adopted contemplated overlapping competencies and powers held by
equal, although structurally different, branches.
When the battle over the Constitution shifted from Philadelphia to
the states, intelligent and forceful critiques forced the Federalists to
express their vision of war in more concrete terms. The Federalist re433. This analysis is limited by the reliability of the documentary records we have on the
Constitutional Convention. James Madison's notes provide the most complete and objective record of
the Convention. Unfortunately, it is likely that Madison was able to record, at best, only ten percent
of the speeches made at the Convention, and that his notes also contain expanded versions of ideas
that he put forth only in embryonic form during the summer of 1787. James H. Hutson, The Creation
of the Constitution: The Integrity of the Documentary Record, 65 TEx. L REv. 1, 34-35 (1986);
Richard B. Bernstein, Review Essay, Charting the Bicentennial, 87 COLuM. L REV. 1565, 1604-06
(1987). Aside from ninety percent of the convention speeches, we also have no record of the
informal discussions between delegates. The limited nature of the documentary evidence, however,
persuades all the more for reliance upon the institutional and political history presented in this Article.
434. See, e.g.,'l FARRAND, supra note 357, at 18-19 (speech of Edmund Randolph (May 29,
1787)).
THE CONTINUATION OFPOLITICS
1996]
sponded to the Antifederalist attack by defending a system in which the
President and legislature would each use their independent powers as
they saw fit, and in which the courts and legal sanctions were wholly
absent. It was a system that mirrored the British example. As James
Madison described it before the Virginia ratifying convention: "The
sword is in the hands of the British king; the purse in the hands of the
435
Parliament. It is so in America, as far as any analogy can exist.
As with other clauses of the Constitution, however, the war powers
provisions did not spring forth fully formed like Athena from the head
of Zeus. To understand the development of these provisions, we must
examine the constitutional debate, not through selective quotations, but
rather, through a comprehensive and careful analysis to reveal the twists
and turns of the Framers' conversation. After passing through the crucible of the ratification debates, the traditional allocation of war powers
remained fundamentally in place.
1. Early Proposals: The Virginia Plan and Beyond
When Edmund Randolph of Virginia made the first proposal for a
new form of government on May 29, 1787, the delegates did not
possess clear plans for war powers. The Virginia plan introduced the
innovation of a "National Executive" which would "enjoy the Executive rights vested in Congress by the Confederation," while the
"National Legislature" would exercise the "Legislative Rights" of the
old Congress.436 In a situation that would seem-familiar to modem separation of powers scholars, the Framers did not share an exact definition
of executive and legislative powers, with the result that Randolph's language engendered some confusion.
The delegates could agree that the old Congress played both executive and legislative roles and that the English Crown and Parliament
shared certain executive and legislative powers. They all concurred that
the executive, legislative, and judicial powers should remain distinct and
separate. Beyond that, things were murky. James Wilson, for one, believed that the executive should only execute the laws, appoint officials,
and exercise powers delegated by the legislature.437 Madison agreed
with much of Wilson's approach, but he also believed that "certain
'
powers were in their nature Executive."438
Although unsure about the definitions of executive and legislative
powers, many of the Framers apparently believed that the Continental
Congress had exercised its war powers when acting in its executive,
435.
436.
3 ELLIOT, supranote 119, at 393.
1 FARRAND, supra note 357, at 21.
437.
438.
1 id. at 66.
1id.at 67.
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rather than its legislative, capacity. On June 1, when the Virginia plan's
provision to transfer the old Congress' executive powers was discussed,
several delegates protested that this would give the executive branch the
complete power over war and peace. Charles Pinckney of South
Carolina "was for a vigorous Executive but was afraid the Executive
powers of [the existing] Congress might extend to peace & war &c
which would render the Executive a Monarchy, of the worst kind, towit
'
an elective one."439
John Rutledge supported his fellow South
Carolinian, because "he was for vesting the Executive power in a single
person, tho' he was not for giving him the power of war and peace.""'
Although James Wilson supported a single executive for its "energy dispatch and responsibility to the office," he shared Pinckney's
concerns and warned that the Convention should not adopt the English
division of executive and legislative powers."' Wilson "did not consider
the Prerogatives of the British Monarch as a proper guide in defining
the Executive powers. Some of these prerogatives were of a Legislative
nature. Among others that of war & peace &c."I2 While Madison initially may have agreed with Wilson on the war powers question, his own
notes do not reflect it. 3 At this point in the debate, then, the Framers
seemed to agree that vesting the President with all "executive powers"
would give him the power over war and peace. For this reason, several
delegates opposed the transferring of all executive power to the
President because it would give him authority in war and peace equal to,
if not greater than, that enjoyed by the English King.
Despite this vigorous resistance to executive war powers, the delegates chose to defer the question until a later time. Although subsequent proposals deviated from the arrangements of the Virginia plan,
they did not reflect a different understanding of the executive and legislative branches' war powers. An alternative plan, placed on the table
by William Paterson of New Jersey, suggested that the executive "direct
all military operations; provided that none of the persons composing the
federal Executive shall on any occasion take command of any troops, so
as personally to conduct any enterprise as General." 4 Paterson's suggestion on this point did not meet with the approval of the Convention,
but his plan nonetheless was sent to the Committee of Detail, which was
439.
440.
441.
1id. at 64-65.
1id. at 65.
1id
442.
1 id.
at 65-66.
443. Oddly enough, the notes of Rufus King of New York show Madison, rather than Pinckney
or Wilson, raising the issue. King records Madison as saying that "executive powers ex vi termini, do
not include the Rights of war & peace &c. but the powers shd. be confined and defined." I id.at 70.
444. lid.at 244.
1996]
THE CONTINUATION OF POLITICS
in charge of translating the various proposals into a draft constitution." 5
Although Patterson's New Jersey plan contained the weakest executive
of all the various schemes, one elected and controlled by Congress, it
demonstrates that even those most opposed to executive power believed
that the future President should control the military.
In yet another plan of government, Alexander Hamilton put forth a
design more similar to the one we have today. In a lengthy speech, he
proposed giving the executive, which he called the "Governour," "the
direction of war when authorized or begun." 6 The Senate would
possess "the sole power of declaring war."" 7 In his influential work,
Professor Lofgren has read Hamilton, perhaps the most pro-executive
figure of the Convention, as "inclined to limit severely the executive's
role in initiating war" because it appears to require a declaration of war
before the President can direct it."' This surely overstates the case.
Hamilton could have said that the executive had the direction of war
after the Senate had declared it. Certainly, as we have seen, the state
constitutions and the Articles of Confederation provided examples of
constitutive documents which placed such restrictions on the executive
power. In any event, the Convention did not adopt anything like
Hamilton's explicit restriction on the President's war powers, so it is
difficult to conclude that Hamilton's rejected plan represents the
Convention's thoughts on war powers.
Indeed, Hamilton recognized that the executive could wage war
without a declaration, when war had been authorized or begun.
Hamilton's language would seem to include more contingencies than a
declaration followed by formal hostilities. Furthermore, Hamilton's
plan, which was widely ignored by his colleagues, recognized that both
the Governor and the Senate would share the powers of the executive
branch. 9 In this respect, Hamilton joined his colleagues in envisioning
war powers as an executive power with the Senate acting as an executive
privy council, rather than as a legislative body.
These early stages of the Convention did not give rise to a change
in the existing allocation of war powers between the executive and the
legislature. On July 26, the Convention sent specific resolutions derived
from the Virginia plan to the Committee of Detail. The delegates retained the principle that the national legislature would exercise the legislative powers of the old Congress, but they removed the language
445.
446.
See 2 id. at 157 (James Wilson's Committee of Detail notes).
lid. at292.
447.
lid
448. LOFGREN, supranote 114, at 13.
449. Hence, Hamilton proposed that both the Governor and Senators should hold their positions
for life and, like other federal officials, should be removable by impeachment. See 1 FARRAND,
supra note 357, at 291-92.
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giving the executive branch the Congress' executive powers. In its
place, they inserted an enumeration of the executive's power as extending only to executing the laws and appointing officers. The resolutions failed to transfer the old Congress' executive powers, including
those of making war and peace, to any institution within the new government. 45 0
Once the Committee of Detail began its work, James Wilson sought
to win what he could not on the floor.45' Although Wilson did not chair
the committee, he dominated its substantive work by virtue of his respected intellect.452 In cooperation with Randolph, the chair of the committee, Wilson promulgated a draft which transformed the Convention's
general resolutions into specific enumerations of power. To Congress,
Wilson assigned the power "to make War; to raise Armies; to build and
equip Fleets."4 3 To the Senate, Wilson granted the authority to make
treaties and to send ambassadors. 414 To the President, Wilson allocated
the power of "Commander in Chief of the Army and Navy of the
'
United States, and of the Militia of the Several States."455
The President
also received the powers to execute the laws and appoint officials, to call
Congress and to recommend legislation, to receive ambassadors, and to
grant pardons.456
Clearly, Wilson's grants of authority to the executive branch were
less generous than the powers historically possessed by British and
American executives. Despite this relative loss in power, the President
still retained the commander-in-chief powers. Wilson's draft, although
it did not necessarily comport with the majority's views, served as the
starting point for the significant debate that began on August 17.
2. Making and Declaring War: The Debate of August 17
After spending the next two weeks arguing about and voting on
various details of the Committee's draft, the Convention turned its
450. See 2 id. at 131-32.
451. Clinton Rossiter has described Wilson as "from first to last the best friend of the Presidency
in the Convention." RosSrrER, supra note 318, at 223. That he may have been, but not when it came
to war powers. Even though the Convention would change Congress' power to declare war, Wilson
remained steadfast in his belief that the Constitution gave Congress alone the power to make war.
See 2 ELLIOT, supra note 119, at 528 (speech at Pennsylvania ratifying convention); 2 THE WORKS
OF JAMES WILSON 57 (James D. Andrews ed., 1896) (lectures as professor of law) [hereinafter
WILSON].
452. Wilson "took upon himself the major responsibility for putting the resolutions of the
Convention and the thoughts of his colleagues into the language of fundamental law." RoSSITER,
supra note 318, at 202. On the respect for Wilson's legal talents among the Framers, see Amar, supra
note 346, at 474.
453. 2 FARRAND, supra note 357, at 168.
454. 2 id. at 169.
455. 2 id. at 172.
456. 2 id. at 171-72.
1996]
THE CONTINUATION OFPOLITICS
attention to the Make War Clause. Following a very brief debate,4 7 the
Convention changed the clause's grant of power to Congress from the
Charles
power to "make" war to the power to "declare" war.45
Pinckney of South Carolina opened the August 17 debate by arguing
that the power to make war should rest in the Senate, because the full
legislature's "proceedings were too slow."459 Pinckney believed that
the Senate was superior for both functional and political reasons. Not
only would the Senate be "more acquainted with foreign affairs, and
most capable of proper resolutions," but it also should have the power
to make war because "[ilt would be singular[ly] [unique] for one[]
Pinckney also believed
authority to make war, and another peace."''
the Senate, more than Congress as a whole, would prove a more
appropriate vessel for the war power because it represented the states
directly: "[T]he small have their all at stake in such cases as well as the
large States.""1
Others went further than Pinckney in their skepticism of Congress
and suggested an expansion of the executive role in war-making. Pierce
Butler proposed "vesting the power [to make war] in the President, who
will have all the requisite qualities, and will not make war but when the
'
Like his colleague from South Carolina,
Nation will support it." 462
Butler wanted to reapportion the war power to the executive for both
functional and political reasons. In his view, the executive possessed
"the requisite qualities" for war, and he would only make war with the
nation's political backing.
Immediately after Butler's comment, Madison and Elbridge Gerry
of Massachusetts moved "to insert 'declare,' striking out 'make' war;
leaving to the Executive the power to repel sudden attacks. '46 3 We can
interpret the thrust of Madison's amendment as at least expanding the
executive's power to respond unilaterally to an attack.
Madison's notes, however, fail to answer two significant questions
about his proposed change. Madison does not elaborate on what type
of attack would trigger the executive's war-making authority. While an
invasion of American soil would seem to qualify, it is unclear if assaults
on American forces, citizens, or property overseas could justify unilateral executive war-making as well. Furthermore, Madison does not indicate whether he and Gerry described the purpose of their amendment
457. Professor Lofgren notes that the debate occupies "little more than one page out of the 1,273
which contain the printed records of the Convention." LoFGORN, supranote 114, at 7.
458. 2 FAReAND, supranote 357, at 318-19.
459. 2 id. at 318.
460.
2 id.
461.
2/,U
462.
463.
2 iU
2 U!
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("to repel sudden attacks") to the whole Convention, or whether they
introduced the amendment without explanation.
The subsequent confusion over the amendment suggests that
Madison and Gerry did not explain its meaning to the assembled delegates. Perhaps the lateness of the hour-the debate occurred at the
equivalent of 5:00 p.m. on a Friday-may have fatigued the renowned
note-taker himself. Whatever the reason, the discussion shows quite
clearly that the Framers did not possess a clear consensus on the Declare
War Clause.
Speaking first, Roger Sherman believed that Madison's amendment
was unnecessary. The draft's original version "stood very well. The
Executive shd. be able to repel and not to commence war."" Sherman
appeared to think that the President already had the power to respond to
attacks, and that reducing Congress' power to that of declaring war
would permit the Executive to commence wars unilaterally. He argued
further that using "make" was "better than 'declare' the latter narrowing the power too much."'
Sherman correctly realized that the
amendment would remove Congress' monopoly over war, and permit
the President to initiate hostilities as well.
Sherman's comments, however, apparently engendered some
confusion. Some delegates appeared to have interpreted Sherman as
opposing the amendment in order to protect executive power.
Sherman's remarks may have suggested that, absent an explicit prohibition, the President possessed the power to declare war in certain circumstances. By substituting "declare" for "make" in the enumeration
of Congress' powers, the President would lose this power to Congress.
Elbridge Gerry seems to have interpreted Sherman's comments in this
way, for he rose next to proclaim that he "never expected to hear in a
4 66
republic a motion to empower the Executive alone to declare war.
Gerry's statement seems odd. But, if we view Sherman's comment
as an attempt to expand presidential power by preserving the
Executive's authority to declare war, Gerry's exclamation might make
more sense. Gerry could have intended the alteration to narrow the
President's authority to engage in hostilities, so that he could not wage
unilaterally a formal, declared war. At this point, our understanding of
eighteenth-century international law again proves useful. Being familiar
with Grotius and other treatise writers, Gerry would have feared any
interpretation that gave the President an authority to declare war,
because a declaration would represent an immense widening of a
conflict at home and abroad. Gerry may have agreed with broad
464.
465.
466.
2id
2 id
2 id
19961
THE CONTINUATION OF POLITICS
presidential war-making authority, but he did not want the President to
have the power to convert the entire nation's relations from peace to
one of total, absolute war.
Further debate involving the allocation of both the war and peace
powers also reflects the Framers' shared understanding of the meaning
of a declaration of war. Pinckney had argued that the same body, the
Senate, should exercise the power of peace and war. Oliver Ellsworth of
Connecticut responded that "there is a material difference between the
cases of making war, and making peace. It shd. be more easy to get
out of war, than into it. War also is a simple and overt declaration."467
In contrast to war's simplicity, said Ellsworth, "peace [is] attended with
intricate & secret negotiations."' 8
It is evident that Ellsworth shared the common understanding that
declaring war differed from commencing war, neither of which a
Framer would have described as "simple and overt." Like Gerry,
Ellsworth was concentrating on the legal aspects of war and peace, rather
than their operational meanings. Hence, declarations of war are
"simple" because they alter legal relationships and recognize an existing state of hostilities in one shot. In discussing peace, Ellsworth describes the negotiation of a treaty, again a legal formality that recognizes
the end of hostilities.
Rising to support Ellsworth, George Mason of Virginia also differentiated between war and peace: he "was for clogging rather than facilitating war; but for facilitating peace." 9 Mason further said he "was
agst giving the power of war to the Executive, because not [safely] to be
trusted with it; or to the Senate because not so constructed as to be entitled to it," but then curiously backed the change from make to declare.47 Mason's actions comport with his words only if we view him as
concurring in the idea that the "make" war language did not preclude
the executive from waging a defensive war, or from declaring war.
Ellsworth and Mason may have supported the change to "declare" war
because it limited the executive's ability to plunge the nation into a total
war.
Some amount of confusion also surrounded the taking of the vote
on the Madison-Gerry amendment. Madison's notes show that seven
states initially voted to adopt the change, with two states against. After
the Convention had approved the new language, Rufus King rose to explain that "'make' war might be understood to 'conduct' it which was
467.
468.
469.
470.
2 id. at 319.
2 iU
2 iU
2iU
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an Executive function."47' Madison records that King's critique of the
"make" war clause convinced Ellsworth to change Connecticut's vote
to yes, although the amendment had already received sufficient support
to pass.472 However, the official Journal of the Convention shows that
the Madison-Gerry amendment initially lost by a vote of 4-5, with New
Hampshire, Connecticut, Maryland, South Carolina, and Georgia voting
against, and then upon a second vote succeeding by the 8-1 tally, with
New Hampshire remaining the lone dissenter. 73
Max Farrand, the editor of The Records of the Federal Convention
of 1787, tells us that the printed version of the Journal was notoriously
unreliable, especially in recording accurate vote tallies.474 Farrand concludes that in places where Madison's notes and the Journal disagree,
Madison's notes are the more reliable source. 475 Thus, it is likely that
the Madison-Gerry amendment initially passed by a vote of 7-2, and
later 8-1, after Ellsworth switched.
Although the closing events of August 17 are somewhat unclear, we
still can venture some tentative conclusions. Changing the phrase from
"make" to "declare" reflected an intent to prohibit Congress from
encroaching on the sole executive power to conduct war. Although the
amendment only changed Article I, inserting "declare" for "make"
seemed to recognize the President's powers in one dimension, and restrict it in another. Madison and Gerry's explanation of their amendment confirms that the Framers implicitly understood that a reduction in
congressional war authority would produce a corresponding expansion
in executive authority, even though they failed to explain whether the
President's new "power to repel sudden attacks"476 derived from the
executive power or "Commander in Chief' clauses. The change not
only increased the minimum level of executive power-repelling sudden attacks-but it also set a limit on its apex as well--declaring war.
Adopting the amendment made clear that the President could not unilaterally take the nation into a total war, but that he might be able to engage the nation in hostilities short of that. 47
471. 2id
472. 2id
473. 2 id. at 314.
474. lid at xvii-xviii.
475. 1 id Lofgren suggests an alternative view of the matter--that Madison's notes are
incorrect and that the first vote was in the negative. King's explanation then becomes critical,
because it convinces three states, Connecticut, Georgia, and South Carolina, instead of just one state,
to switch their votes and approve the change. See LOFGREN, supra note 114, at 8-9. While
provocative, this theory is undermined by Madison's specific statement that King's speech changed
only Ellsworth's vote. If other states had switched their votes in reaction to King on such a
momentous question, Madison probably would have made note of them as well.
476. 2 FARRAND, supra note 357, at 318.
477. The August 17th debate also raises two other often overlooked points. First, some of the
delegates did not envision the executive as Wilson's super-magistrate charged only with executing
1996]
THE CONTINUATION OFPOLITICS
3. Peace and the Presidency
Further insights into the structure of war powers may be gained by
examining how the Framers expected the branches to interact in making
peace.47
Debates at the Convention reveal an understanding that
Congress could not effectively end war simply by passing a resolution
declaring the cessation of hostilities. The Framers believed that only a
peace treaty, signed by the President and ratified by two-thirds of the
Senate, formally could terminate a war, and that the President's role as
protector and representative of the nation prevented Congress from
ending war without his consent. It is telling that the Framers did not
give Congress the sole authority to terminate a war, just as they did not
give it the sole power to begin one.
Debates in the Convention on the peace power suggest that the
delegates believed Congress would rely on politics and its appropriations power to exert its influence over war. In a situation of unilateral presidential war-making, the Framers expected Congress to resort
to the appropriations power as the remedy. The initial draft of the
Constitution allocated the treaty-making power in the same fashion as
our present Constitution. Debate ensued, however, over who should
control peacemaking. On September 7, Madison proposed an amendment that would have required only a majority of senators to ratify
peace treaties (with presidential approval, of course), to "allow[] these to
the laws passed by Congress. A majority of the Framers probably believed that the President had a
"protective power" which permitted him to guard the nation from attack, even in the absence of
congressional consent or of a constitutional provision expressly delegating such power. Cf.Henry P.
Monaghan, The Protective Power of the Presidency, 93 COLUM. L REv. 1, 67 (1993) (arguing that
such protective power is limited to the protection of "personnel, property, and instrumentalities of the
government that the President is supposed to administer"). Another group also thought that the
President could lay a claim, equal to that of Congress, to representing the wishes of the people, for he
would "not make war but when the Nation will support it." 2 FARRAND, supra note 357, at 318.
Supporters of a representative presidency resisted proposals to vest Congress with the sole power
over peace, which the Convention considered after the Madison-Gerry amendment. To be sure,
some Framers supported a strong executive hand in peace on the functional ground that the President
could conduct peace negotiations in secret. However, supporters of executive peace powers
provided as their predominant rationale that the President would better represent the wishes of the
people. Congress could not be trusted because it might grow to enjoy the enhanced federal powers
concomitant with wartime, or because sectional interests represented in Congress might prolong war
at the expense of the national interest. Thus, a motion to give Congress the sole power of making
peace failed by 10-0 immediately after the vote to give Congress the power to "declare," rather than
"make," war. See 2 id. at 319.
478. Some scholars have argued that in the face of inter-branch division over whether to wage
war, Congress should either pass a statute over presidential veto essentially "de-authorizing"
hostilities or sue in the federal courts for a declaration that the President has acted unconstitutionally.
See, e.g., ELY, supra note 1, at 54-67; GLENNON, supranote 1, at 314-27; KOH, supra note 1, at 18284. However, if the Framers believed that the treaty power was the sole means to end a conflict, then
passing a statute over presidential veto could not do the trick, for any treaty at a minimum requires
presidential ratification. Congress should have no direct constitutional means to override the
President's refusal to sign a treaty.
CALIFORNIA LAW REVIEW
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be made with less difficulty than other treaties."479 Madison's proposal
was designed to respond to those, such as James Wilson and Rufus
King, 4 0 who had objected earlier to the super-majority requirement for
peace treaties with a remaining Presidential "check" on senatorial
power. Madison's amendment passed without dissent.
Madison then altered his course, seeking to eliminate all presidential involvement in peace treaties. He suggested that the delegates renew
the requirement of a two-third Senate majority for peace treaties, but
without the requirement of presidential approval. "The President,"
Madison told the Convention, "would necessarily derive so much power
and importance from a state of war that he might be tempted, if authorized, to impede a treaty of peace."''
Madison quite presciently wanted
to prevent the President from using his war powers to enhance his overall power and importance vis-a-vis Congress and the People.
Madison's attack on executive war powers, which has a familiar
ring to it when compared with the modem criticisms of the presidency,
touched off a debate that ultimately rejected his proposal. His sole supporter was, oddly enough, Pierce Butler, who earlier had wanted to give
the President all war-making authority. In a truly schizophrenic change
of mind from his earlier comments in favor of expanded presidential
war powers, Butler now "was strenuous for [Madison's] motion, as a
'
necessary security against ambitious & corrupt Presidents."482
He urged
his colleagues to remember how the executive in Holland and the Duke
of Marlborough in England each had sought "to prolong the war of
which he had the management."'
Butler's fellow delegates, however, did not fear that vesting the
peacemaking power in the executive would produce an American
Marlborough.
Nathaniel Gorham of Massachusetts, the former
President of the Continental Congress, opposed Madison's proposal because he "thought the precaution unnecessary as the means of carrying
on the war would not be in the hands of the President, but of the
Legislature."'
Gouverneur Morris responded to Butler by emphasizing the President's role as the protector and representative of the nation.
48 Morris
"[T]he power of the President in this case [is] harmless,""
reassured the Convention, and "no peace ought to be made without the
concurrence of the President, who was the general Guardian of the
479.
480.
481.
482.
483.
484.
485.
2 FARRAND, supra note 357, at 540.
See 2 id.
2 id.
2 id. at 541.
2 id.
2 id. at 540 (emphasis added).
2 id. at 540-41.
1996]
THE CONTINUATION OF POLITICS
National interests.48 6 Elbridge Gerry even went so far as to argue that
peace treaties should receive a super-majority and other treaties less,
because "[i]n Treaties of peace the dearest interests will be at stake."'
Given this opposition, it is not surprising that Madison's amendment
failed by a vote of 8-3, with his own state of Virginia voting against the
proposal. This vote demonstrates the Framers' vision of the President as
the protector and representative, and the Congress as the fiscal authority
that could safeguard against unwise presidential war-making.
Madison had overextended himself and soon lost the gains he had
won earlier. On September 8, the day after Madison had succeeded in
excluding peace treaties from the two-thirds requirement, the Convention re-examined the Treaty Clause. Rufus King raised the issue because he wanted Madison's amendment deleted, while James Wilson,
who had been strangely quiet during the debates on the war and treaty
powers, wanted all treaties approved by a simple majority of the
Senate.48 The debate that ensued, particularly the arguments made by
opponents of the two-thirds requirement, is instructive because it reaffirmed that Congress' role in war-making derived from its control
over the purse.
Kicking off the discussion, Gouverneur Morris spoke in favor of
excepting peace treaties from the two-thirds requirement. He argued
that Congress would be hesitant to support necessary wars for fear that it
would have difficulty making peace when it chose to do so. For example, he argued that "[i]f two thirds of the Senate should be required for
peace, the Legislature will be unwilling to make war for that reason, on
account of the Fisheries or the Mississippi, the two great objects of the
Union."489 Morris thought that Congress would be more willing to support efforts to enter war, if it was easier to end one.
His second criticism of the two-thirds requirement was that congressional control over peace was preferable to the traditional manner of
legislative control-"negativingthe suppliesfor the war.'"''4 Although
Morris found the use of appropriations to control both war and peace as
"the more disagreeable mode," his views appear to represent the
Framers' understanding that Congress' chief institutional weapon was
the power of the purse.49'
486. 2 id at 541 (emphasis added).
487. 2 id Gerry, who hailed from Massachusetts, even insinuated that a majority of the Senate,
in a tight spot, might sacrifice the very northern or southern states of the nation to achieve peace: "In
treaties of peace also there is more danger to the extremities of the Continent, of being sacrificed,
than on any other occasions." 2 id
488.
2 id. at 547-48.
489.
2 id. at 548.
490.
491.
2 id. (emphasis added).
2idL
CALIFORNIA LAW REVIEW
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Wilson joined Morris' efforts to oppose the two-thirds requirement
for peace, because if the Constitution required a super-majority to ratify
a peace treaty, "the minority may perpetuate war, against the sense of
the majority."49 2 But Elbridge Gerry then intervened to point out that
the Senate could not be trusted for fear of "corrupt[ion] by foreign
493
influence," and apparently convinced the majority of the delegates.
Despite Wilson's protests, the amendment to eliminate the two-thirds
requirement ultimately failed. By an 8-3 vote, the Convention struck
the Madison amendment adopted the day before and installed the
Treaty Clause we have today. Those who supported the two-thirds requirement prevailed, and their arguments that the legislature could not
be trusted carried the day.494
The Philadelphia Convention intended to modify, rather than transform, the political relationship between the executive and legislative
branches in the realm of war powers. The executive would have full
command of the military and would play the leading role in initiating
and ending war. But the executive could not wage war without the support of Congress, which could employ its appropriations power to express its disagreement and, if necessary, to terminate or curtail unwise,
unsuccessful, or unpopular wars. The Framers revised the inherited order by vesting the power to declare war in the legislature. In their plans,
the clause acted as a method of "dual containment": it prevented the
President from unilaterally igniting a full-scale war, and it simultaneously barred Congress from encroaching on his exclusive authority to
conduct war.495 In crafting this design, many of the Framers envisioned
a larger role for the President than some originally had hoped for at the
beginning of the Convention. Rather than a trumped-up magistrate, the
President received the responsibility of guarding the nation and its interests, even if that meant fighting with the legislature to enforce the desires of the People, in war as well as in peace.
If the Declare War Clause bore the interpretation that some scholars
believe, then theoretically Congress would be able to terminate executive
war-making by declaring war not to exist. This interpretation, however,
is far from the original understanding of the Clause. Although the
Declare War and Appropriations Clauses assign Congress an important
492. 2 id
493. 2 id. In addition to Madison's notes, letters by delegates during the ratification process
confirm the substance of the debate. See Letter from Hugh Williamson to James Madison (June 2,
1788), in 3 id. at 306.
494. See 2 id at 548.
495. The phrase "dual containment" has been used in a different context by Professor Thomas
Schwartz. He uses the phrase "dual containment" to describe postwar American foreign policy in
Europe, which aimed to contain both the Soviet Union and a resurgent Germany. See THOMAS A
SCHWARTZ, AMERICA'S GERMANY: JOHN J. MCCLOY AND THE FEDERAL REPUBLIC OF GERMANY
299 (1991).
1996]
THE CONTINUATION OFPOLITICS
role in determining the breadth and intensity of hostilities with another
nation, the Framers did not intend Congress to exercise a similar power
in beginning or ending conflicts. When discussing both the Declare
War Clause and the treaty power, delegates expressed skepticism concerning the ability of a popular body to represent accurately the best interests of the nation, or the People's wishes, when it came to controlling or
ending war. Rather, the Framers saw the President as the protector and
representative of the nation, and they believed that a decision as significant as peace could not be made without his consent. The Framers
were not dupes; they remained fully aware of the dangerous possibility
that a President might prolong war in order to expand his own political
power. Nonetheless, the Framers maintained that if Congress wished to
challenge presidential war-making, it had to turn to "the more dis'
agreeable mode, of negativing the supplies for the war."496
C. The State RatificationDebates
When the Constitution went to the states for ratification, the People
found that the power to "declare war" had replaced the "sole and exclusive right and power of determining on peace and war" that had belonged to the old Continental Congress. Although we today have access
to the conversations that took place at the Constitutional Convention, the
People and their delegates in 1787 and 1788 had no such clear guide.4
Without the benefit of Madison's notes, they had to rely upon the constitutional text and their understandings of the language appearing in
the Constitution. In light of the eighteenth-century meaning of
"declare war" and "Commander in Chief," those who participated in
the ratification likely viewed the Constitution as creating a structure in
which the President played the primary role in war, and a significant, if
not primary, role in determining peace.
The records of the ratification debates in the state conventions and
in the newspapers are not as complete as one would desire on such a
momentous question. Nonetheless, the nationwide debate over ratification between the Federalists and Antifederalists illuminates the common
understanding of the war clauses. We must resist the temptation to pick
through the record for quotes that are easily plugged into modern debates. The ratification process was an exchange of arguments and a discussion of ideas between two political groups seeking the best form of
national government. Neither the Antifederalists nor Federalists were
'
more "correct" or "true,"498
but examining the reasoning of each side
496. 2 FARRAND, supra note 357, at 548 (statement of Gouvemeur Morris).
497. These conversations did not become available until 1819. Hutson, supra note 433, at 2.
498. See Gordon S. Wood, Ideology and the Origins of Liberal America, 44 WM. & MARY Q.
628, 632-33 (1987).
CALIFORNIA LAW REVIEW
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regarding constitutional meaning and understanding how their ideas
and arguments changed during the crucible of the ratification process
aids the interpretive process. The eventual outcome of the debates-the
ultimate arguments offered by the Federalists before Antifederalists'
criticism-can be accepted as the generally received meaning of the
Constitution's war powers system. This message can then be understood within the previously discussed context formed by English, colonial, and early national American history.
The Federalists initially justified the Constitution's allocation of
war powers based on the need for a strong national government in a
hostile world. Antifederalists, however, argued that this arrangement
would produce a tyrannical national government capable of oppressing
the states. In light of these predictions, Federalists discarded their earlier
claims of exigency. Instead, they developed new arguments drawing on
the formal division of powers between Congress and the presidency.
They invoked the example of Parliament's funding powers as a check
on executive War-making. They also used the rhetorical strategy of exaggerating the powers of the British monarchy in order to make the
President's role appear more benign. Although it would have been to
their advantage, the Federalists quite noticeably failed to raise the possibilities of judicial review as an additional check on either executive or
federal war-making.
1.
The AntifederalistAttack
Initial Federalist explanations of the war power quickly became an
easy target for Antifederalist writers and politicians.
Alexander
Hamilton argued in an early FederalistPaperthat the federal government must possess the means to respond to unpredictable events and
foreign dangers:
The authorities essential to the care of the common defence are
these-to raise armies-to build and equip fleets-to prescribe
rules for the government of both-to direct their operations-to
provide for their support. These powers ought to exist without
limitation: Because it is impossible to foresee or define the extent
and variety of national exigencies, or the correspondent extent
& variety of the means which may be necessary to satisfy them.
The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be
49
imposed on the power to which the care of it is committed. 1
In The FederalistNo. 41, Madison built upon Hamilton's thesis by justifying exclusive federal war powers on a realist approach to international relations:
499.
THE FEDERALIST No. 23, supra note 304, at 147 (Alexander Hamilton).
1996]
THE CONTINUATION OFPOLITICS
With what colour of propriety could the force necessary for defence, be limited by those who cannot limit the force of offence?
If a Federal Constitution could chain the ambition, or set bounds
to the exertions of all other nations: then indeed might it prudently chain the discretion of its own Government, and set
bounds to the exertions for its own safety.
How could a readiness for war in time of peace be safely
prohibited, unless we could prohibit in like manner the preparations and establishments of every hostile nation? The means of
security can only be regulated by the means and the danger of
attack. They will in fact be ever determined by these rules, and
by no others.'Sr
Madison hoped that the political unity brought by the Constitution itself
would deter European interference in America. But if that were not
enough, the Constitution had to permit the federal government to take
any steps necessary for the national security: "It is in vain to oppose
constitutional barriers to the impulse of self-preservation. '5 ' According to Madison, exigency justified the possibility of tyranny.
Antifederalists met the Federalists' argument head-on. Writing at
the same time, the capable Antifederalist writer "Brutus" told the voters
of New York that the requirement of an emergency would prove no
obstacle to a large federal army: "[T]here will not be wanting a variety
of plausible reasons to justify the raising [of an army], drawn from the
danger we are in from the Indians on our frontiers, or from the
European provinces in our neighbourhood. ''sra If the government
needed to safeguard against surprise attacks, Antifederalists argued, let
the Constitution provide only for sufficient forces to staff outposts and
garrisons during peacetime. This would enable the states to retain their
exclusive control over military supply as a popular counterweight to a
standing army.'
If the states did not impose these restrictions,
Antifederalists warned, the federal government eventually could toss
aside the Constitution and impose a dictatorship on the states. Said
Brutus:
[T]he evil to be feared from a large standing army in time of
peace, does not arise solely from the apprehension, that the rulers may employ them for the purpose of promoting their own
ambitious views, but that equal, and perhaps greater danger, is to
500.
TiE FEDERALIST No. 41, supra note 304, at 270 (James Madison).
501. Id.
502. Brutus, The Dangersof a Standing Army, N.Y. J., Jan. 17, 1788, reprinted in 2 DEBATE ON
THE CoNsrrrUTIoN, supranote 16, at 40,43.
503. See, e.g., 3 ELLIOT, supra note 119, at 378-81 (statement of George Mason at Virginia
ratifying convention) (arguing that state governments should retain the right to arm and discipline
their own militias); Brutus, supra note 397, at 416 (arguing that the Constitution should provide
peacetime standing forces only to staff outposts and garrisons).
CALIFORNIA LAW REVIEW
[Vol. 84:167
be apprehended from their overturning the constitutional powers
of the government, and assuming the power to dictate any form
they please.Antifederalists sought to recall the critique of the King's actions set
forth in the Declaration of Independence: there, a tyrannical government in London had used a standing army to violate the constitutional
rights of the colonists. Even less extreme Antifederalists greatly feared
the possibilities of federal military rule. Perhaps the best representative
of moderate Antifederalist thought, the "Federal Farmer," acknowledged the need for a federal government with exclusive powers over
"all foreign concerns, causes arising on the seas, to commerce, imports,
armies, navies, Indian affairs, peace and war." 5 But, he warned:
The general government, organized as it is, may be adequate to
many valuable objects, and be able to carry its laws into execution on proper principles in several cases; but I think its warmest
friends will not contend, that it can carry all the powers proposed
to be lodged in it into effect, without calling to its aid a military
force, which must very soon destroy all elective governments in
the country, produce anarchy, or establish despotism."
In comparing British tyranny with federal tyranny, the Antifederalists viewed the American President as the equivalent of the King
against whom they had rebelled only a decade earlier. To the Antifederalists, both held the same powers over war and peace. In several
widely circulated pamphlets, Antifederalists argued that the textual
grants of power to the President mirrored those of the King. Writing
under the pseudonym "Cato," an Antifederalist asked, "[W]herein
does this president, invested with his powers and prerogatives, essentially
differ from the king of Great-Britain[?]"'
Similarly, the writer "Old
Whig" scolded the Federalists for not "mak[ing] the kingly office he-
504. Brutus, supranote 397, at 414.
505. Letter from the "Federal Farmer" to "The Republican" I, Examine Coolly Every Article,
Clause, and Word (Nov. 8, 1787), reprintedin I DEBATE ON THE CONSnTUtON, supra note 16, at
245, 252. The Federal Farmer, considered one of the most popular and influential of Antifederalist
writers, was long thought to be Richard Henry Lee, but Gordon Wood has rebutted the case for his
authorship. See Gordon S. Wood, The Authorship of the Letters from the Federal Farmer, 31 WM. &
MARY
Q. 299 (1974). It may have been Melancton Smith of New York. See Robert H. Webking,
Melancton Smith and the Letters from the Federal Farmer, 44 Wm.& MARY Q. 510 (1987).
506. Letter from the "Federal Farmer" to "The Republican" 11,Examine Coolly Every Article,
Clause, and Word (Oct. 9, 1787), reprintedin 1 DEBATE
ON THE CONsTrTUTION,
supra note 16, at
254,258.
507. Cato, Essay V N.Y. J., reprintedin 2 STORING, supranote 114, at 113, 115. Although the
identity of "Cato" is unknown, some have speculated that Cato may have been George Clinton, the
governor of New York. 2 id. at 102 (preface to Cato's essays).
1996]
THE CONTINUATION OFPOLITICS
reditary" since they were asking the People "to receive a king." 5 For,
he warned:
[The President] appears to me to be clothed with such powers as
are dangerous. To be the fountain of all honors in the United
States, commander in chief of the army, navy and militia, with
the power of making treaties and of granting pardons, and to be
vested with an authority to put a negative upon all laws, unless
two thirds of both houses shall persist in enacting it... is in reality to be a king as much a King as the King of Great-Britain,
and a King too of the worst kind;-an elective King. °9
Like Cato, Old Whig asked his readers "what important prerogative the
King of Great-Britain is entitled to, which does not also belong to the
President during his continuance in office." '
The Antifederalists were especially troubled by the President's
power as Commander in Chief. Antifederalists were familiar with historical examples demonstrating that an army, once given to an executive, was difficult to take away. They remembered English Kings who
had maintained their own standing armies during their battles with
Parliament. They remained mindful of examples from classical history,
especially Julius Caesar's rise to power at the head of his armies.
Most vivid in their memory, however, was the recent example of
General George Washington, who had given up the reins of power and
returned to private life against the wishes of many of his officers and
troops. Antifederalists doubted that future Commanders-in-Chief would
display the civic virtue and restraint that made Washington's action instantly famous around the world. 1 Old Whig urged his readers:
[L]et us suppose, a future President and commander in chief
adored by his army and the militia to' as great a degree as our
late illustrious commander in chief; and we have only to suppose
one thing more, that this man is without the virtue, the moderation and love of liberty which possessed the mind of our late
general, and this country will be involved at once in war and tyr51 2
anny.
With a standing army at hand, the President would encounter little
difficulty in using his constitutional powers to impose an unconstitu-
508. An Old Whig, Essay V INDEPENDENT GAZETTEER (Phila.), reprinted in 3 STORING, supra
note 114, at 34, 38.
509. 3 id. at 37.
510. 3 id. at 38.
511. See, e.g., 3 ELLIOT, supra note 119, at 496 (statement of George Mason at Virginia
ratifying convention) (warning that one as disinterested and amiable as George Washington might
never command again).
512. An Old Whig,supranote 508, at 38.
CALIFORNIA LAW REVIEW
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tional dictatorship. As the Antifederalist writer "Philadelphiensis"
pleaded to the voters of Pennsylvania:
Who can deny but the president general will be a king to all intents and purposes, and one of the most dangerous kind too; a
king elected to command a standing army? Thus our laws are to
be administered by this tyrant; for the whole, or at least the most
important part of the executive department is put in his hands."'
Philadelphiensis feared that, as Commander in Chief, the President "can
at any time he thinks proper, order [any freeman] out in the militia to
exercise, and to march when and where he pleases." '14
Luther Martin, a prominent Maryland delegate to the Philadelphia
Convention who refused to sign the finished product, read the Commander-in-Chief power as vesting in the President the authority to appoint all military officers. 15 As in classical Rome, an army so
personally dependent on its Commander would provide the President
with an unstoppable weapon for imposing his wishes on the People.
Martin warned in a widely circulated pamphlet that such an army and
navy so "dependant [sic] on his will and pleasure, and commanded by
him in person, will, of course, be subservient to his wishes, and ready to
execute his commands. '5 16
Anticipating the Federalists' response that the separation of powers
would prevent military dictatorship, Antifederalists argued that Congress
would prove no obstacle to presidential designs. These critics claimed
that recent British history demonstrated how easily the executive could
co-opt Parliament. Cato believed the comparison between King and
President especially telling when it came to war. He argued that both
exercised substantial freedom of action cabined only by the need for
financial support:
[With the veto, the President] will have a great share in the power
of making peace, coining money, etc. and all the various objects
of legislation, expressed or implied in this Constitution: for
though it may be asserted that the king of Great-Britain has the
express power of making peace or war, yet he never thinks it
prudent so to do without the advice of his parliament from
whom he is to derive his support and therefore these powers, in
both president and king, are substantially the same: he is the
generalissimo of the nation, and of course, has the command
513. Philadelphiensis, Essay IX, INDEPENDENT GAZETTEER (Phila.), reprinted in 3 STORING,
supra note 114, at 127-28. Philadelphiensis is thought to be the pseudonym of Benjamin Workman, an
Irish immigrant who became a tutor in mathematics at the University of Pennsylvania. I DEBATE ON
THE CoNsTrrUTION, supra note 16, at 1054 (biographical notes).
514. Philadelphiensis, supranote 513, at 128.
515. Luther Martin, Information to the General Assembly of the State of Maryland (1788),
reprintedin 2 id. at 27, 67-68.
516.
2 id. at 68.
19961
THE CONTINUATION OF POLITICS
and controul of the army, navy and militia: he is general conservator of the peace of the union ....
Like others in the founding generation, Cato was aware that the exercise
of the British monarch's prerogatives in war and peace, as broadly described by Blackstone, was subject to the need for parliamentary funding. Hence, Cato correctly concluded that in the realm of practical
politics, the President's authority under the Constitution did not differ
in important measure from that of the King. Antifederalists asked how
Congress could control the President if the executive in Great Britain
had come to such power even in the face of formal parliamentary powers over the purse. In terms of practical politics, the President would
have the same authority as the British monarch to plunge the nation into
war, or lead it into peace.
Some Antifederalists believed that the Constitution gave the
President even more freedom from legislative control than that enjoyed
by the Crown. "Tamony," an Antifederalist writer widely published in
the key states of Pennsylvania, New York, and Virginia, dismissed
Federalist attempts to pass off "the office of president" with "levity"
and as "a machine calculated for state pageantry."51 Rather, Congress'
power to fund the military for two years, Tamony believed, would place
the President in a more advantageous position than the King, who had to
seek military appropriations every year. Said Tamony:
Suffer me to view the commander of the fleets and armies of
America, with a reverential awe inspired by the contemplation of
his great prerogatives, though not dignified with the magic name
of King, he will possess more supreme power, than Great Britain
allows her hereditary monarchs, who derive ability to support an
army from annual supplies, and owe the command of one to an
annual mutiny law. The American President may be granted
supplies for two years, and his command of a standing army is
unrestrained by law or limitation.519
Some Antifederalists even feared that Congress would collude with the
President to make him the equivalent of a king. 20
517. Cato, supra note 507, at 115-16 (emphasis added).
518. Tamony, Essay, VA. INDEPENDENT CHRON., Jan. 9, 1788, reprinted in 5 STORING, supra
note 114, at 145-46.
519. 5 id.
520. Perhaps a bit of doggerel will illustrate the intensity of Antifederalist fear of the President
and army:
Tho' British armies could not here prevail
Yet British politics shall turn the scale;In five short years of Freedom weary grown
We quit our plain republics for a throne;
Congress and President full proof shall bring,
A mere disguise for Parliament and King.
A Standing army !-curse the plan so base;
CALIFORNIA LAW REVIEW
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Implicit in the Antifederalist attack was an understanding of the
British Constitution consistent with the one offered in this Article. Practice and political history were the guiding precedents, not Blackstone's
open adoration of the royal prerogative. Thus, the Antifederalists recognized that Congress would possess the same check on the President
that Parliament exercised against the King-the power of the purse.
They doubted, however, whether Congress would put its checking power
to good use.
Completely missing from the debate was a discussion of the
Declare War Clause, which the Antifederalists never mentioned as another possible obstacle to presidential war-making authority. Perhaps it
was not in their interests to acknowledge the Clause because they were
intent on exaggerating the President's Article II powers. However, the
Antifederalists did not criticize everything in the Constitution, and the
more sophisticated writers were not reluctant to praise the provisions
they liked. The Antifederalists, it seems, simply did not care about, or
even notice, the Declare War Clause. To them, the important point was
that the Constitution was reenacting the dangerous allocation of war
powers between the executive and legislature that had existed in recent
British and American history. Given their conclusion that Parliament
and Congress controlled the "sinews of war," and that the King and the
President directed the military, they had every reason to believe that the
new Constitution would produce a war-making system similar to
Britain's.
2. The FederalistResponses
Federalists answered this sophisticated challenge by attacking the
notion that the American Constitution merely mimicked the British.
Ignoring the Antifederalist invitation to discuss the realities of British
A despot's safety-Liberty's disgrace.Who sav'd these realms from Britain's bloody hand,
Who, but the generous rustics of the land;
That free-born race, inur'd to every toil,
Who tame the ocean and subdue the soil,
Who tyrants banish'd from this injur'd shore
Domestic traitors may expel once more.
STATE GAZETTE OF SOUTH CAROLINA, Jan. 28, 1788, reprintedin 15 THE DOCUMENTARY HISTORY
OF THE RATIFICATION OF THE CONSTITUTION
486 (John P. Kaminski et al. eds., 1984) (reprinted in
New York, Boston, Philadelphia, New Jersey, and Virginia newspapers).
Antifederalist writers throughout the states hammered home the theme that the President, with
"his uncountroulable [sic] power over the army, navy, and militia" and the support of a "dependent"
Congress, would be tempted to "give us law at the bayonets['] point." Republicus, Essay, KY.
GAZETTE, Mar. 1, 1788, reprinted in 5 STORING, supra note 114, at 165, 169; see also A Farmer,
Essay II, MD. GAZETTE, Feb. 29, 1788, reprinted in 5 id. at 16, 25 (contrasting the proposed
Constitution's arrangement with the institutional safeguards present in the British system of
government, and noting that the protections against the danger of standing troops were greater in
England).
1996]
THE CONTINUATION OFPOLITICS
politics, the defenders of the Constitution stressed the formal differences
between the American and British plans of government. To downplay
Antifederalist concerns, the Federalists emphasized the separation of war
powers between the branches, exaggerated the powers of the King, and
highlighted the relative weakness of the President. In so doing, the
Federalists engaged in rhetorical excess and intentionally distorted
Antifederalist arguments to permit their easy dismissal.
In The FederalistNo. 69, Alexander Hamilton directly responded
to the concerns of Tamony, Cato, and their associates. Arguing that the
Philadelphia Convention had stripped from the executive the power of
declaring war and raising armies, Hamilton portrayed the President as
something of a second-rate King:
[The President is to be Commander in Chief of the army and
navy of the United States. In this respect his authority would be
nominally the same with that of the King of Great-Britain, but in
substance much inferior to it. It would amount to nothing more
than the supreme command and direction of the military and
naval forces, as first General and Admiral of the confederacy;
while that of the British King extends to the declaring of war and
to the raising and regulating of fleets and armies; all which by
the Constitution under consideration would appertain to the
Legislature. 2
At the end of No. 69, Hamilton contrasted more explicitly the powers of
the American President with the British monarch:
The President of the United States would be an officer
elected by the people for four years. The King of Great-Britain
is a perpetual and hereditary prince. The one would be amenable to personal punishment and disgrace: The person of the
other is sacred and inviolable. The one would have a qualified
negative upon the acts of the legislative body: The other has an
absolute negative. The one would have a right to command the
military and naval forces of the nation: The other in addition to
this right, possesses that of declaring war, and of raising and
regulating fleets and armies by his own authority.5'
Some have read Hamilton's defense as an acknowledgment that
Congress must give its approval to all wars, but even if we were to accept
The FederalistNo. 69 as the authoritative explanation of the Constitution (which it is not), this view surely overstates Hamilton's meaning.
Hamilton carefully avoided explaining whether the formal powers transferred from King to Congress were actually significant. Hamilton did
nothing to undermine the prevailing belief that a declaration of war was
521.
522.
Tim FEDERALIST No. 69, supra note 304, at 465 (Alexander Hamilton).
Id. at 470.
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unnecessary for waging war-rather, in The FederalistNo. 25, Hamilton
argued the exact opposite."' Here, Hamilton emphasized formal constitutional powers and ignored the political process.
Hamilton's The FederalistNo. 69 also engaged in the common
Federalist rhetorical trick of inflating the King's actual powers in order
to give the American Constitution a more modest appearance. For example, Hamilton claimed that the British monarch had the sole authority
to raise and regulate the armies and navies. However, as we have seen,
by the middle of the eighteenth century, Parliament had assumed at least
co-equal authority in these areas; as a practical matter the Crown could
not pursue its military policies without the assent of the legislature. 24
Hamilton also implied in No. 69 that the King could conduct war and
foreign policy on his own. But, as we have seen, Parliament had used its
funding powers to achieve a powerful voice in these areas as well.
The Federalists continued to make these arguments until the very
end of the ratification process. Speaking before the last ratifying convention, which took place in North Carolina, James Iredell overdrew the
differences between President and Congress versus King and Parliament.
Discussing the President's commander-in-chief powers, Iredell said:
A very material difference may be observed between this power,
and the authority of the king of Great Britain under similar circumstances. The king of Great Britain is not only the commander-in-chief of the land and naval forces, but has power, in
time of war, to raise fleets and armies. He has also authority to
declare war. The President has not the power of declaring war
by his own authority, nor that of raising fleets and armies. These
powers are vested in other hands. The power of declaring war is
expressly given to Congress .... [Congress has] also expressly
delegated to [it] the powers of raising and supporting armies,
and of providing and maintaining a navy."
Both Hamilton and Iredell answered Antifederalist concerns by contrasting Blackstone's formal (and incomplete) description of the allocation of war powers with the American Constitution's more balanced
26
approach.1
The Antifederalists correctly claimed that the Constitution's system
did not deviate all that much from the British Constitution as it existed
in practice. Thus, the force of Antifederalist arguments-that the
Parliament already exercised substantial control via the spending power
over war and foreign policy-forced Hamilton to distort the British
523.
TiE FEDERALIST No. 25, supra note 304, at 161 (Alexander Hamilton) ("T]he ceremony
of a formal denunciation of war has of late fallen into disuse .....
524.
525.
526.
See supra text accompanying notes 219-265.
4 ELLIOT, supra note 119, at 107-08.
See, e.g., THE FEDERALIST No. 69, supra note 304, at 465 (Alexander Hamilton).
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separation of powers in order to defend the Presidency. 27 Federalists
never fully confronted the Antifederalists' claim that Congress would
satisfy the President's military requests as readily as Parliament had cooperated with the King. Indeed, the Federalists appear to have ceded to
the Antifederalists the truth of their arguments, and even failed to
emphasize the point that the Antifederalists had conceded: that the executive needed legislative approval in the form of funding for its wars.
3. The Battle Joined: RatificationArguments and the Centrality
of Funding
Supporters of the Constitution could not long escape Antifederalists' arguments with replies based on the formal allocation of powers.
The Antifederalists had realized that the Constitution left open the patterns of interaction that would occur between the branches during war.
In the ratifying conventions, they pressed home the notion that the federal government, and the President in particular, would use military
might to oppress the states and the People. In responding, Federalists finally explained that the political relationship between President and
Congress-as illustrated by the struggles between King and
Parliament-would enhance, rather than detract from, wartime checks
and balances.
Thus, in responding to the Antifederalists, the
Constitution's defenders referred to their common history and legal
understandings to establish that the legislature's power of the purse
would be the true check on executive war-making.
In the state conventions, Antifederalists criticized the Constitution
for failing to separate the "sword and purse" between the state and federal governments. Antifederalists maintained that the federal government could control the military or direct takation, but not both.
Otherwise, the national government would use military might to oppress
the states because the Constitution's separation of powers would not
prevent tyranny by the executive.
In the early ratifying conventions Federalists began to develop an
answer that hinged on congressional control of funding. This argument
ripened when placed before the glare of vigorous Antifederalist attacks
527. Hamilton also misrepresented the Antifederalists' arguments and the nature of
Parliament-Crown relations in defending the treaty power. Hamilton attributed to the Antifederalists
the argument that Parliament ratified treaties made by the King, which implied that the Presidentwho made treaties subject to Senate approval-again exercised powers identical to the monarch's.
Id. at 467-68. Hamilton then stated that Blackstone proved that the King made treaties alone, and
hence the American President was much weaker in that regard because he operated subject to a
legislative check. Id. But the Antifederalist paper Hamilton appears to refer to, Cato IV, only
suggests that Parliament plays a role in the treaty process because the King chooses to consult with it
because of its fiscal powers. "[F]or though it may be asserted that the king of Great-Britain has the
express power of making peace or war, yet he never thinks it prudent so to do without the advice of
his parliament from whom he is to derive his support." Cato, supranote 507, at 115-16.
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in the large contested states, such as Virginia. The Federalists conceded
that the President might come into dictatorial powers using the army, but
they claimed that such a dictatorship was unlikely because Congress
could cut off funding for the military, or refuse to raise the armies in
the first place.
Although this argument first appeared in the New England states in
The FederalistNo. 69, this shift from a focus on constitutional law to a
focus on practical politics is demonstrated by a letter from Samuel
Holden Parsons, a lawyer, major general, and Federalist leader in
Connecticut, to William Cushing, future Supreme Court Justice and
Massachusetts Federalist. Parsons wrote to explain Connecticut's ratification, in the hopes of assisting passage in her neighbor, Massachusetts.
I think we involve ourselves in unnecessary doubts about our
security against an undue use of the powers granted by the
Constitution, by not clearly distinguishing between our present
condition and that of the people of Great Britain. There, the
supreme executive is hereditary. He does not derive his powers
from the gift of the people; at least, if the contrary is true in
theory, its practical operation is not such. He there holds, as his
prerogative, the power of raising and disbanding armies, the
right to make war and peace with many other very great and
important rights independent of any control. That the armies
are his armies, and their direction is solely by him without any
control. The only security the people there have, against the
ambition of a bad king, is the power to deny money, without
which no army can be kept up. Here the army, when raised, is
the army of the people. It is they who raise and pay them; it is
they who judge of the necessity of the measure; tis they who are
to feel the burthens and partake the benefits.
... It is therefore our army and our purse, and not the
sword or purse of a king."8
Soldiers drawn from the People, Parsons argued, would feel no personal
attachment to the President, especially when Congress had called them
528. Letter from Samuel Holden Parsons to William Cushing (Jan. 11, 1788), in 3 JENSEN, supra
note 114, at 569-70. See also Richard H. Kohn, The Constitution and National Security: The Intent of
the Framers, in THE UNITED STATES MILITARY UNDER THE CONSTITUTION OF THE UNITED
STATES, 1789-1989, at 61, 83 (Richard H. Kohn ed., 1991) (discussing the Federalists' argument that
Congress would hold sufficient power over the authorization of standing armies). Cushing was vicechairman of the Massachusetts ratifying convention and presided during John Hancock's absence
until the final week of debate. He voted for ratification, served as a presidential elector for
Washington in 1789, and served as an associate Justice of the Supreme Court from 1789 until his
death in 1810. Parsons, who had risen rapidly in the ranks of the Continental Army, saw only the
early implementation of the Constitution he voted for-he died in November 1789 when his canoe
overturned in the rapids of Big Beaver River. See 1 DEBATE ON THE CONSTITUTION, supra note 16,
at 1001, 1031-32 (biographical notes).
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up and paid their salaries. Congress would also check the President
through its "power to deny money, without which no army can be kept
up."529 These political forces would prevent an executive tyranny.
Antifederalists presented their criticisms throughout the ratification
debates, but saved their strongest challenge for Virginia, home to wellknown and respected opponents of the Constitution, such as Patrick
Henry and George Mason. As part of a larger attack on the Constitution's placement of both the sword and purse in the national government, Henry attempted to undermine the Federalist separation of powers
arguments through deceptive rhetoric. He described the President as an
unchecked monarch with control over the army, but he also argued
against the dangers of placing both the sword and the purse in the hands
of Congress.
Henry was concerned about the national government's ability to
exercise tyranny over the states, believing that the central government
might sacrifice the territorial or commercial interests of individual states
at the altar of national policy. 30 On June 9, 1788, Henry, when arguing
that the national government would oppress the states, stated that the
Constitution gave Congress all war powers:
I find fault with the paper before you, because the same power
that declares war has the power to carry it on. Is it so in
England? The king declares war; the House of Commons gives
the means of carrying it on. This is a strong check on the king.
He will enter into no war that is unnecessary; for the commons,
having the power of withholding the means, will exercise that
power, unless the object of the war be for the interest of the
nation. How is it here? The Congress can both declare war and
carry it on, and levy your money, as long as you have a shilling
5 31
to pay.
529. Letter from Samuel Holden Parsons to William Cushing, supra note 528, at 570.
530. In the Virginia ratifying convention, Henry argued that the proposed Constitution would
allow the President and Senate to sign a treaty with Spain to give up navigation rights to the Mississippi
River more easily than could occur under the Articles of Confederation. "The honorable gentleman
[Madison] told you that there were two bodies, or branches, which must concur to make a treaty. Sir,
the President, as distinguished from the Senate, is nothing. They will combine, and be as one." 3
ELLIOT, supra note 119, at 353.
In a confusing passage, John Marshall attempted to answer Henry's attack on Congress for
having the power to both declare and wage war: "Are the people of England more secure, if the
Commons have no voice in declaring war? [O]r are we less secure by having the Senate joined with
the President?" 3 id. at 233. The young Marshall made two mistakes: in assuming that the English
Commons had no voice in decisions to declare war, and in reading the Constitution to give the Senate
and the President the power to declare war. Although Professor Lofgren has read this comment to
imply that Congress should have both powers because it represented the people, see LOFGREN, supra
note 114, at 20, I think the statement is somewhat mysterious and, at best, addresses only the authority
to declare war and says nothing about the authority to initiate hostilities.
531.
3 ELLIOT, supra note 119, at 172.
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Despite Henry's full awareness of British political history and the financial controls Parliament exercised over the Crown, he strategically misconstrued the Constitution to give Congress the powers to declare, fund,
and conduct war. He left the President completely out of the equation
by interpreting "declare" war to mean "commence" and "wage"
war.532 Henry depicted the national power as entirely unchecked and,
therefore, easily susceptible to tyranny.
Henry, however, was not only concerned that the national government would impose tyranny on the states and lead the nation into unwise foreign wars. He was also concerned about the dangers the military
presented at home. In this context, he put forth the prediction that the
President would exercise unchecked war powers. He told the Virginia
convention:
If your American chief be a man of ambition and abilities,
how easy is it for him to render himself absolute! The army is in
his hands, and if he be a man of address, it will be attached to
him, and it will be the subject of long meditation with him to
seize the first auspicious moment to accomplish his design .... If we make a king, we may prescribe the rules by
which he shall rule his people, and interpose such checks as shall
prevent him from infringing them; but the President, in the field,
at the head of his army, can prescribe the terms on which he
shall reign master, so far that it will puzzle any American ever to
get his neck from under the galling yoke.... If ever he violates
the laws.., he [may] come at the head of his army, to carry
every thing before him .... [W]here is the existing force to
punish him? Can he not, at the head of his army, beat down
every opposition? Away with your President! [W]e shall have a
king: the army will salute him monarch: your militia will leave
you, and assist in making him king, and fight against you: and
what have you to oppose this force? What will then become of
you and your rights? Will not absolute despotism ensue?...
Henry's argument here that the monarchy would come at the hands of a
President using his constitutional powers to control the military, how532. Henry was not the only Framer to make this mistake of reading Congress to have all the
powers in war. In the New York ratifying convention, for example, Robert Livingston erroneously
stated that the proposed Congress and the old Congress had the same powers: "Congress ha[s] the
power of making war and peace, of levying money and raising men; they may involve us in a war at
their pleasure ....
2 id. at 278. This misunderstanding may have occurred due to a failure to read
the new Constitution carefully, or from tendency to use the word "Congress" as shorthand for
"federal government" when discussing federalism (rather than separation of powers) issues. I think
the latter explanation is more likely, given that under the Articles of Confederation, "Congress" was
the sole organ of the national government. I think this is borne out later in the New York debates,
when the same Robert Livingston referred to "Congress" and the "Union" interchangeably during
another discussion of the powers of sword and purse. See 2 id. at 386.
533. 3 id. at 59-60.
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ever, is clearly inconsistent with his June 9th statement that Congress
exercised unchecked war powers. However, both arguments were rhetorically useful to Henry in his efforts to show that the national government would tyrannize the states if it exercised control over the military.
This understanding of Henry's comments and strategy are made even
clearer in the context of the Antifederalists' proposal that the states
control their militias.5" This proposal was made immediately following
Henry's speech on June 14.
The Federalists' reaction to Henry's onslaught emphasized checks
and balances. To answer both Henry's federalism and separation of
powers arguments, they stressed that both the President and Congress
exercised substantial war powers. Further, they specifically invoked the
example of Parliament's financial check on executive war-making as
the model for the operation of war powers under the Constitution.
Federalist George Nicholas replied to the Antifederalist militia
proposal:
Under the new government, no appropriation of money, to the
use of raising or supporting an army, shall be for a longer term
than two years. The President is to command. But the regulation of the army and navy is given to Congress. Our representatives will be a powerful check here. The influence of the
commons, in England, in this case, is very predominant.535
It remained for Madison, who shepherded the Constitution through
the Virginia convention, to comprehensively critique the Antifederalist's
purse-and-sword theory. Madison began by criticizing Henry's view
that the purse and sword had to be held by different governments:
What is the meaning of this maxim? Does it mean that the sword
and purse ought not to be trusted in the hands of the same government? This cannot be the meaning; for there never was, and I
can say there never will be, an efficient government, in which
both are not vested. The only rational meaning is, that the sword
and purse are not to be given to the same member. 36
All one had to do to see this in operation, Madison chided his colleagues, was to look at the British government-just as Nicholas had
urged. '"The sword is in the hands of the British king; the purse in the
hands of the Parliament. It is so in America, as far as any analogy can
exist," Madison declared.537 Thus, safety was to be found not by giving
the states power over the militia or supply, but by relying on Congress
to exercise its constitutional powers to check presidential actions-just
534.
See 3 id. at 384-88.
535.
536.
537.
3 id. at 391.
3 id. at 393.
3 id.
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as the people of England could trust Parliament to restrain the Crown.
Madison continued:
Would the honorable member say that the sword ought to be put
in the hands of the representatives of the people, or in other
hands independent of the government altogether?... This
would be a novelty hitherto unprecedented. The purse is in the
hands of the representatives of the people. They have the appropriation of all moneys. They have the direction and regulation of land and naval forces. They are to provide for calling
forth the militia; and the President is to have the command,
and,
538
in conjunction with the Senate, to appoint the officers.
Madison did not argue that presidential power would be checked
by the Declare War Clause or by the judiciary. Nor did he claim that
the Constitution imposed specific and formal rules for the war-making
process, as it did for the legislative process. Instead, Madison argued
that the branches would develop their war policies through the conflict
or cooperation of their plenary constitutional powers. 3 9
The significance of the forum in which Madison argued cannot be
overstated. Virginia was a key state, perhaps the key state, in the
Federalist ratification effort.- ° Antifederalists chose Virginia as the battleground for their fiercest efforts against ratification. Their final motion to send the Constitution back to the states for amendments lost by a
vote of only 88-80.4 The ratifying convention brought together the
ablest minds of both sides: Henry, Mason, Benjamin Harrison, and
James Monroe for the Antifederalists; Madison, Edmund Randolph,
Henry Lee, and John Marshall for the Federalists. The significance of
Virginia in the ratification process and in the Union, and the narrowness
of Federalist victory, recommend giving the greatest weight to the
justifications for the Constitution entered there.
538. 3 id. at 393-94.
539. Hamilton made the same point in the New York ratifying convention. See 2 id. at 348-51.
However, Federalist Oliver Elsworth in the Connecticut ratifying convention appears to have thought,
like Henry, that Congress had both the power of sword and purse. See 2 id. at 195. It appears that
Elsworth was using "Congress" as shorthand for the national government because there is no
evidence that any of the other Federalists believed that Congress had the power of the "sword."
Subsequent Antifederalist attempts in Virginia to rein in the President's Commander-in-Chief
powers met with a similar response. Continuing to play Henry's tune, Antifederalist George Mason
suggested an amendment to prohibit the President from personally leading the army without
congressional approval. See 3 id. at 496. Nicholas responded that "the army and navy were to be
raised by Congress, and not by the President." 3 id. at 497. Mason retorted, "Although Congress [is]
to raise the army... no security arises from that" because Congress would feel compelled to do so in
wartime. 3 id at 498. Although Mason remained unconvinced, the Convention agreed with Nicholas
and voted down Mason's proposal.
540.
Hamilton believed ratification in New York was impossible without Virginia adopting the
Constitution first. See 2 DEBATE ON THE CONSTITUTION, supra note 16, at 1067. There is little doubt
that the Union could not have survived without Virginia and New York.
541. 2 id. at 1068.
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The Virginia debates were also important because Federalists in
other states repeated Madison and Nicholas' defense of war powers.
When an Antifederalist at the North Carolina Convention argued that the
President "could too easily abuse such extensive powers," and stated
that he was of the opinion that "Congress ought to have power to direct
the motions of the army," 2 Richard Spaight, a signer of the
Constitution and one of James Iredell's Federalist allies, responded with
Madison and Nicholas' arguments. He replied that Congress could
always use its constitutional authority to cut off funds for the military if
the President went too far:
[I]t was true that the command of the army and navy was given
to the President; but... Congress, who had the power of raising
armies could certainly prevent any abuse of that authority in the
President-that they alone had the means of supporting armies,
and that the President was impeachable if he in any manner
abused his trust.5"
Federalists likely put forth similar arguments in New Jersey,
Connecticut, and Massachuusetts, and they probably repeated them in
the several state ratifying conventions for which we have few, if any,
records.5 "
Throughout these debates on war and the powers of the President
and Congress, the Declare War Clause went quietly unmentioned. In
fact, given the Antifederalists' belief that Congress would prove no
match for a President armed with the commander-in-chief powers, one
would have expected the Federalists to have stressed that only Congress
could initiate war-if that indeed had been the true meaning of the
Declare War Clause. Instead, the Federalists based their arguments upon
the funding power to check the President (and if that failed, upon the
last resort of impeachment). In South Carolina, to provide one example,
supporters of the Constitution noted that the President was not given the
entire war powers, because such would "throw[] into his hands the
influence of a monarch, having an opportunity of involving his country
in a war whenever he wished to promote her destruction."5 " But when
describing the war powers, Federalist Charles Pinckney noted only that
the commander-in-chief power and the power to fund the military were
542. 4 ELLIOT, supra note 119, at 114.
543. 4 id.
544. See, e.g., A Jerseyman, To the Citizens of New Jersey, TRENTON MERCURY, Nov. 6, 1787,
reprintedin 3 JENSEN, supranote 114, at 146, 148 ("If the President should have ... designs without
the concurrence of Congress,he might have the honorof commanding an army as long as they would
stay with him, but it is not common for an army to remain long in the field without the prospect of any
pay."); Letter from Samuel Holden Parsons to William Cushing, supra note 528, at 570.
545.
4 ELLIOT, supranote 119, at 263 (Pierce Butler).
CALIFORNIA LAW REVIEW
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separated. No one in the South Carolina debates mentioned the Declare
War Clause. 6
These defenses of the Constitution are consistent with the legal and
historical context within which the Framers acted. Federalists construed
the Constitution's allocation of powers as giving Congress the purse as
the primary check on presidential use of the military. Throughout the
debates, declaration of war went unmentioned except as out of fashion.
The idea that the President had to receive congressional authorization
before using the military was not raised. In addition, no reference was
made to the courts as adjudicators ,of inter-branch disputes over war.
Rather, the Framers expected each branch to pursue its goals by relying
on its own powers.
Congress would exercise influence through its
power over funding and its power of impeachment, just as Parliament
and the colonial and state legislatures had done. The Framers' design
should come as no surprise, because it built upon the foundations of the
British and colonial constitutional experiences the Framers' had all
shared. The tools given to President and Congress were the very ones
used by Parliament to influence and control the Crown's conduct of
foreign policy for the previous 100 years-a history familiar to educated Americans of the day. s47
546. See 4 id. at 258 (Charles Pickney) (The President "is commander-in-chief of the land and
naval forces of the Union, but he can neither raise nor support forces by his own authority.").
547. Perhaps the only voice on war powers that was inconsistent with this shared understanding
was that of James Wilson. Advocates of congressional primacy in war powers quite correctly have
placed great reliance on his views. But in light of the above chronicle of the debate between the
Federalists and the Antifederalists, James Wilson's views can be seen as exceptional rather than
typical. As with any large-scale collective political actions, not all supporters of the Constitution
agreed on every point, especially when it came to the faith in checks and balances in war. James
Wilson, the leader of the Federalist campaign in the Pennsylvania ratifying convention, was one who
doubted the virtues of the British system. Wilson had attempted to convince the Constitutional
Convention to minimize any presidential role in the making of war and peace, an effort he continued
when the Constitution went to the states. In a speech generally defending the federal government's
new powers, Wilson told the Pennsylvania ratifying convention:
This system will not hurry us into war; it is calculated to guard against it. It will not be in the
power of a single man, or a single body of men, to involve us in such distress; for the
important power of declaring war is vested in the legislature at large: this declaration must
be made with the concurrence of the House of Representatives: from this circumstance we
may draw a certain conclusion that nothing but our national interest can draw us into a war.
2 id. at 528.
Wilson's speech is a favorite among studies supporting greater congressional war power. See,
e.g., ELY, supra note I, at 3-5; FISHER, supranote 1, at 7-8; LoFGREN, supra note 114, at 19; Berger,
supra note 13, at 36. It suggests that only Congress can involve the nation "in such distress" as war
because Congress represents the people, and therefore, the clearest expression of the national
interest. Wilson's explanation of the war powers appears to contradict this Article's interpretation of the
war powers as giving the executive the initiative, checked only by the power of the purse. However,
I would suggest that Wilson's meaning is more consistent with my interpretation than might at first
appear. Wilson's speech appears to refer to the formal aspects of a declaration of war, rather than
to the authorizing process for the commencement of hostilities. Wilson's oft-quoted speech took
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4. War Powers and JudicialAbstention
Central to the Framers' vision was the ability of each branch to resort to self-help to counter the actions of the other. Neither Federalists
nor Antifederalists contended that the courts should step in to referee
separation of powers disputes. If the Framers had understood that the
courts would oversee the constitutional processes of going to war, it
would have been in the Federalists' political interests to emphasize a
place during a larger discussion about the virtues of a national government, whose strength and unity
would deter the European powers from partitioning America. Wilson hoped the United States'
strength and the vastness of the Atlantic Ocean would prevent the new nation from "mix[ing] with
the commotions of Europe." 2 ELLIOT, supra note 119, at 528. Then Wilson remarked, "No, sir, we
are happily removed from them, and are not obliged to throw ourselves into the scale with any." 2 id
(emphasis added). Wilson's subsequent statement that "[t]his system will not hurry us into war"
appears to have been intended to contrast the treaty power with the war power. 2 id He was not
expounding on the President's and Congress' joint powers over war, but instead was reassuring his
audience that the President and the Senate alone could not obligate the nation to enter a full-scale war
because of treaty obligations-a fairly common practice in a period of European great power
rivalries and alliances. Thus, Wilson emphasized that neither "a single man" nor "a single body of
men" could involve the nation in total war, but that the legislature as a whole must decide. 2 id He
quite correctly understood that the treaty power could not trump the Declare War Clause.
Although this reading might explain Wilson's thoughts in a more cogent fashion, it is perhaps
safer just to count Wilson as a dissenter from the prevailing Federalist view on war powers. But
Wilson's statement on war powers does not square perfectly with his broad thoughts in favor of a
strong executive expressed during the ratification debates. For example, in defending the executive's
qualified veto over legislation, Wilson stressed that the President's constitutional powers would enable
him to act as an independent representative of the People:
The President, sir, will not be a stranger to our country, to our laws, or to our wishes. He
will, under this Constitution, be placed in office as the President of the whole Union, and
will be chosen in such a manner that he may be justly styled the man of the people. Being
elected by the different parts of the United States, he will consider himself as not
particularly interested for any one of them, but will watch over the whole with paternal
care and affection.... He will have before him the fullest information of our situation; he
will avail himself not only of records and official communications, foreign and domestic,
but he will have also the advice of the executive officers in the different departments of the
general government.
2 id. at 448.
Separately, Wilson also underscored that the President's military authority, among others, would
render him free from legislative oppression. "[Tihere is no well-grounded reason to suspect the
President will be the tool of the Senate," Wilson remarked, because the President's powers were "of
such a nature as to place [the President] above expression of contempt." 2 id at 512-13. By linking
the representational and protective aspects of the presidency with its independent
commander-in-chief powers, Wilson himself may have helped sketch the theoretical justification for
presidential initiative in war. It should also be noted that Wilson's primary Federalist ally in the state
ratifying convention, Thomas M'Kean, echoed his Virginia colleague by explaining that Congress'
role in war lay in funding as well as declaring war. 2 id. at 536-37.
Nonetheless, even later in life, Wilson adhered to his belief that Congress should play the
paramount role in war. In his lectures given as a professor of law in "the college of Philadelphia,"
Wilson contended that "[t]he power of declaring war, and the other powers naturally connected with
it, are vested in congress." 2 WILSON, supra note 451, at 57. He also suggested in his lectures that
the Constitution had mimicked the Angio-Saxon distribution of authority by giving all power over
making war and peace in the legislature, just as the ancient "wittenagemote" had held the same
power before the Norman conquest. 2 id. at 57-58.
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judicial role in war, just as they had highlighted Congress' funding
check on the President.
One might read Article I, which commands that "[t]he judicial
Power shall extend to all Cases... arising under this Constitution,"' 5 as
requiring the federal courts to adjudicate war powers disputes between
the branches. The framing debates, however, suggest that disputes over
war powers fall outside Article II, because the Framers did not view
conflicts between the President and Congress as "Cases." 9 In contrast
with the Constitution's design for passing a statute, which has to meet
the textual requirements of bicameralism and presentment, the Constitution does not require one single, constitutionally correct method for
going to war. 550 Rather, the Constitution establishes a system that creates
a fluid, mutable process for going to war--one defined not by the
Constitution, but by the branches in the use of their constitutional
powers. Having placed war powers in the arena of politics, the Framers
would have viewed inter-branch disputes in the area as unsuitable for
judicial resolution. Such disputes would not constitute an Article III
"Case," because no party could make a claim of right enforceable in
court.
The failure to establish a judicial role in war powers also might
have stemmed from the Framers' understanding of the Declare War
Clause as declaratory in nature. As I have argued earlier, the Framers
would have understood the Declare War Clause as a judicial power
vested in Congress, just as the Constitution gave the Senate judicial
authority in the trial of impeachments."' In these areas, the Constitution
places Congress in the position of the court of last resort. The federal
judiciary therefore could not exercise appellate jurisdiction over war
powers decisions because the Constitution allocated to Congress the sole
power to declare if war exists. Allowing courts to review war powers
decisions would prove an unconstitutional extension of appellate jurisdiction beyond the bounds of Article I.
This analysis may explain the prevalence of the political question
doctrine in foreign affairs cases today. The courts are correctly holding
such cases non-justiciable because the Constitution has vested Congress
with the sole judicial power to decide whether the United States is at war.
548.
549.
U.S. CONSr. art. III, § 2.
Professor Jesse Choper has suggested that the courts also should hold war powers cases
nonjusticiable for functional reasons.
POLITICAL PROCESS:
A
JESSE
H. CHOPER,
JUDICIAL REVIEW AND THE NATIONAL
FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME
COURT
379 (1980).
550. Because the Constitution establishes a clear, defined, exclusive process for passing a
statute, it seems appropriate for the courts to intervene in a case such as INS v. Chadha, 462 U.S. 919
(1983) (invalidating legislative veto). But in the war powers context, the Constitution fails to provide
any such manageable standards for the courts to apply.
551. See supra text accompanying notes 402-405.
1996]
THE CONTINUATION OFPOLITICS
As noted earlier, courts may adjudicate cases that involve the ramifications of the nation's wartime status. But in these cases, the courts must
simply accept the actions of the political branches in war matters as valid
determinations of whether a state of war exists.
At a time closer to the framing, the early Supreme Court adopted
just such an analysis. In Martin v. Mott,5 an 1827 case not unlike the
Vietnam and Persian Gulf war cases brought by reservists, the Court
faced the question of whether a militiaman called to service by the
President could challenge the call-up because a sufficient emergency
did not exist. Pursuant to its Article I, Section 8 powers, 53 Congress had
"provide[d] for calling forth the militia" in a 1795 act, which permitted
the President to summon the militia "whenever the United States shall
be invaded, or be in imminent danger of invasion."5 The plaintiff argued that the Court should decide for itself whether a sufficient danger
of invasion existed to permit the President to exercise his statutory powers. Rejecting this claim, the Court held that the President's official callup of the militia was itself sufficient proof of the emergency, because, as
Justice Story explained, the President "is necessarily constituted the
judge of the existence of the exigency, in the first instance," and thus
he is "the sole and exclusive judge of the existence of those facts"
55
upon which his judgment is based.
The Declare War Clause would seem to demand at least a similar
degree of deference from the courts. Like the executive order in
Martin, an official declaration of war (or absence thereof) is proof
enough concerning the existence of a state of war. Beyond judging
whether such a declaration has issued, courts would remain incompetent
to determine if the nation is at war. Even if the executive has engaged
in hostilities without popular support, neither Congress nor individuals
have an avenue for redress in the courts.556
552. 25 U.S. (12 Wheat.) 19 (1827).
553. "The Congress shall have Power... [t]o provide for calling forth the Militia to execute the
Laws of the Union, suppress Insurrections and repel Invasions ....
" U.S. CONST. art. I, § 8, cl.15.
Note that there is no similar grant of power to Congress over the standing army and navy.
554. Martin,25 U.S. (12 Wheat.) at 28-29.
555. Id. at 31-32.
556. If anything, the several leaders of the ratification effort anticipated the use of judicial
review by the courts to prevent Congress from overstepping its authorities, not the President. As
Hamilton wrote in the famous The FederalistNo. 78, "the courts of justice are to be considered as the
bulwarks of a limited constitution agalnst legislative encroachments ....
" THm FEDERALIST No. 78,
supranote 304, at 526 (emphasis added). The Framers generally did not think of judicial review as a
check on the executive branch. In No. 78, for example, Hamilton consistently refers to the
"legislative act," or the "legislative power" when discussing the object of judicial review. Id. at 52426. Given the Framers' fears that the legislative branch would have the greatest power and incentive
to encroach on the prerogatives of the other branches, their reliance on judicial review to control
only Congress makes perfect sense. With the legislature's powers "at once more extensive and less
susceptible of precise limits," according to Madison, the Framers quite reasonably expected Congress
CALIFORNIA LAW REVIEW
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As this Section has shown, the Framers provided for executive
control and initiative in war, balanced by Congress' power to raise and
supply the military. Decisions on war would arise from the political
interaction of the branches, which had their plenary constitutional
powers at hand to enforce their wishes. In marked contrast to the
Constitution's careful definition of the process to make treaties or
statutes, the Framers left to future leaders the development of a warmaking process. They simply marked out the boundaries within which
the branches could struggle over that process, war by war. The Framers
did not require judicial review of war, then, because they assumed the
process itself to be mutable, as it was in Britain, the colonies, and in the
states. To paraphrase Edward Corwin, the Constitution was not an
invitation to the President and Congress to struggle for primacy in war,
it was an expectation of struggle.55 7
5.
The New Constitutionin Practice
This view of the Constitution is also supported by early postratification history. Because scholars have viewed the Declare War
Clause as granting Congress the sole authority to begin war, the United
States' failure to wage a declared war until 1812 might be seen as
something of a puzzle. Certainly the answer does not lay in the existence of an era of good international feelings from 1789-1812. These
years saw the French Revolution, a general European war, and a resulting series of challenges for American national security policy."' 8 For
the Republic's first five years, the Washington administration waged a
difficult conflict with Indians in the Ohio River Valley, and the Adams
administration fought a naval war, known as the Quasi-War, toward the
turn of the century. Neither of these wars were small conflicts. The
former witnessed the crushing defeat of the nation's first standing army
by the Indians in 1791, in response to which the Washington administration created the nation's first permanent military establishment.5 9
Even though no declaration of war had issued against the Indians,
to control-if not abuse-the President's use of the tools at hand. Id. No. 48, at 334. Witness
Madison's discussion in The FederalistNo. 48: "As the legislative department alone has access to the
pockets of the people ... and ... a prevailing influence over the pecuniary rewards of those who fill
the other departments, a dependence is thus created in the latter, which gives still greater facility to
encroachments of the former." Id.
557. See generally EDWARD S. CORWIN, THE PRESIDENT: OFFIcE AND POWERS 1787-1984
(Randall W. Baird et al. eds., 5th rev. ed. 1984).
558. For discussion of the interests at stake for America, see generally ALEXANDER DECONDE,
ENTANGLING ALLIANCE: POLITICS AND DIPLOMACY UNDER GEORGE WASHINGTON (1958); DREW
R. McCoy, THE ELUSIVE REPUBLIC: POLITICAL ECONOMY IN JEFFERSONIAN AMERICA (1980);
BRADFORD PERKINS, THE CREATION OF A REPUBLICAN EMPIRE, 1778-1865 (1993); BRADFORD
PERINS, THE FrRST RAPPROCHEMENT (1955).
559.
See KOHN, supra note 382, at 91-127.
THE CONTINUATION OF POLITICS
1996]
George Washington exclaimed, "But, we are involved in actual war! ''56 0
The Quasi-War produced not only raids on merchant commerce, but
also full-scale battles between American and French ships, and the creation of a huge 10,000-man regular army, with George Washington as its
56
Commander in Chief and Alexander Hamilton as his deputy. '
In neither 1789 nor 1798 did the President or Congress believe a
declaration of war was necessary. In both conflicts, the President managed international relations, and after diplomacy had failed, ultimately
decided to use military force. Once he had decided upon combat, the
President turned to the Congress for the raising and supply of the
necessary troops and sailors. In the context of voting on the President's
requests, Congress had ample opportunity-of which it invariably took
advantage-to discuss war aims and strategies. Thus, in 1789 President
Washington and his Secretary of War decided that the Indians in the
Northwest were preventing the peaceful settlement of territory ceded by
Great Britain and that a combination of military force and diplomacy
was needed. Once the Indian war bogged down, President Washington
had to ask Congress for more and more funds: first for a call-out of the
militia in 1789 to begin operations; then, for 2,000 regular troops, after
the first, inconclusive battle with the Indians in 1790; then, after the
stunning defeat of General St. Clair the next year, for a tripling of military expenditures to one million dollars a year and 5,000 more troops. 62
Although Congress agreed to the President's requests, each appropri56
ation was accompanied by a vigorous discussion over the war's merits.
For example, Washington's final request for a 5,000-man army, which
finally defeated the Indians under General "Mad" Anthony Wayne at
the Battle of Fallen Timbers in 1794, provoked a bitter debate in
Congress over whether peace efforts would be more effective than force,
whether white settlers had provoked the war, whether the state militias
should be used rather than army regulars, and whether it would make
for better strategy to seek one winning blow rather than "dribbling
away" money every year.5 6" Congress' approval of the appropriation
by a vote of 29-19 in the House and 15-12 in the Senate constituted an
explicit authorization of the President's war plans. Congress never considered a declaration of war necessary.5 65
560.
Id. at 107.
561.
See generally DECONDE, supra note 120; MICHAEL A. PALMER, STODDERT'S WAR:
NAVAL OPERATIONS DURING THE QUASI-WAR WITH FRANCE, 1798-1801 (1987).
562.
563.
564.
565.
See KOHN, supra note 382, at 97-98, 110-11, 120-24.
See iU
Id. at 121-22.
l& at 122-23. One could argue that the Framers believed a declaration of war was
unnecessary in 1789 because the Americans did not consider the Indians a nation-state in the
international system. There is, however, no direct evidence to support such a view; to the contrary,
tribes were enough of a nation-state to sign treaties. See generally Philip P. Frickey, Marshalling Past
CALIFORNIA LAW REVIEW
[Vol. 84:167
The Quasi-War further supports the conclusion that a declaration of
war was not understood as necessary for authorizing combat. The
Quasi-War arose out of revolutionary France's efforts to shatter
Britain's peace with the United States established by the Jay Treaty of
1794.11 After a series of French raids on American commerce and the
declaration of France's Directory that American ships would be seized
if they carried British goods, President Adams sent three diplomatic
emissaries to Paris to negotiate a settlement. When this encounter exploded into the "XYZ Affair," Adams sent the country on a course for
war by publicly releasing the dispatches of the envoys, by requesting
new ships for the navy, and by seeking the buildup of coastal defenses
and a new army of up to 50,000 men. In response, Congress approved
Adams' designs to wage a naval war against France by supplying the
funds for the bulked up military. 67 "We are," Federalists declared,
"now in a state of war."56 Yet Congress never brought to a vote a motion to declare war, even though Federalists controlled both houses and
the presidency. Even those High Federalists who wanted a declaration
viewed its benefits in a purely domestic light. A declaration, they
thought, would "rouse the spirit of the people, facilitate the collection
of taxes, quicken the military preparations, and cut off the correspondence of Republicans with France by making such correspondence
a crime punishable by law."569 But in terms of an authorization of combat, there was no need for a declaration because Congress had already
played a significant role in raising and funding the military and in setting rules for the capture of French ships.
Congress' failure to declare war against France also demonstrates
the limited nature of the conflict. Not seeking a declaration was a deliberate decision of President John Adams, who believed that a full-scale
war against France would not be in the national interest. His decision
fulfilled the hopes of those Framers who wanted the President to play a
more significant role than that of a mere super-magistrate. As we have
seen, the Framers left the crucial decisions in war to the President because they viewed him as the nation's protector and representative. Today, we may see less need for a national presidency that could counter
Congress' regionalist interests. But the late eighteenth and early nineteenth centuries were a time when the Framers rightfully could fear that
a majority in Congress might support a war for sectional, rather than
national, advantage. Thus, the Framers looked to the President to lead
and Present:Colonialism, Constituionalism, and Interpretation of Federal Indian Law, 107 HARv L
REv. 381 (1993).
566. DECoNDE, supra note 120, at 8.
567. See id. at 90-96.
568. Id. at 105.
569. Id. at 104.
19961
THE CONTINUATION OFPOLITICS
America into war when the national interest required, or to discourage
war when self-interested factions gained control of Congress.
The Framers' design was realized during both the Quasi-War and
the 1789 Indian War. In the Indian War, President Washington pursued
a limited war that rejected the hopes of both New England Federalists,
who opposed the war because of its costs, and Southern Republicans,
who sought an aggressive war to secure territorial gain.57 During the
Quasi-War, Adams resisted the demands of his own pro-English party
leaders, who wanted a total war against France." 1 Believing that peace
was possible without risking the costs of a full-scale war, Adams opted
for a limited naval conflict that permitted diplomatic contacts and,
eventually, a negotiated reconciliation. 2 In both cases, the President
pursued the national interest, while different factions in Congress quarreled over aims and strategies in order to achieve their regional or party
objectives.
The Quasi-War also supports this study's argument that the
Framers did not intend the judiciary to play a role in the decisions on
war. Unlike the Indian War, the Quasi-War generated disputes that
reached the Supreme Court in a trilogy of cases: Bas v. Tingy,573 Talbot
v. Seeman,574 and Little v. Barreme.57 Commentators have placed great
store in these opinions, particularly Little, as contemporaneous evidence
showing that courts can exercise jurisdiction over war power casesY 6
However, none of these cases called upon the Supreme Court to decide
that the President was waging war in violation of the Constitution, or that
Congress had failed to declare that a state of war existed, or that courts
could step in to adjudicate inter-branch disputes over war. In fact, the
precedent set by the trilogy remains quite modest. All three revolved
around the question of how much of the value of a ship and its cargo,
seized by an American commander during the naval operations against
France, flowed to the commander instead of to the ship's owner. Such
issues did not involve the power of going to war, but rather the domestic
and legal effects of war once it had begun. Further, these cases clearly
fell within Congress' power to "make Rules concerning Captures
on... Water"' 7 and Article II's grant of the jurisdiction over "all
570. See KOHN, supra note 382, at 121-22.
571. See STANLEY ELKINS & ERic McKT1RICK, THE AGE OF FEDERALISM 595-99 (1993).
572. DECONDE, supra note 120, at 103-08, 112-13.
573. 4 U.S. (4 Dall.) 37 (1800).
574. 5 U.S. (1 Cranch) 1 (1801).
575. 6 U.S. (2 Cranch) 170 (1804), overruled in part by Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89 (1984).
576. See, e.g., ELY, supranote 1, at 55; GLENNON, supranote 1, at 3-8; KOH, supranote 1, at 8182.
577. U.S. CONSr. art. I, § 8.
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Cases of admiralty and maritime Jurisdiction," 8 which from its earliest
days, the Supreme Court has read to authorize federal common
lawmaking power.-79
Rather than making grand pronouncements on the separation of
powers, cases such as Bas, Talbot, and Little underscored Congress' role
in deciding on the legal state of relations with a hostile nation. In Bas
and Talbot, for example, owners of ships that had been captured by the
French, and then recaptured by American warships, challenged the prize
rules that would give the American commanders a substantial portion of
the ship's proceeds. They argued that the prize rules did not operate
because Congress had failed to declare war formally, and that as a result
the Court should hold inapplicable any statutes concerning recaptures
until a declaration of war had been issued."' 0 In both cases the Court
held that Congress had the sole power to decide on the legal nature of
hostilities: whether they would be "general" or "partial," "public" or
"private," "solemn" and "imperfect" or "limited" and "imperfect." According to Justice Chase, "Congress is empowered to declare
a general war, or [C]ongress may wage a limited war; limited in its place,
in objects, and in time." '' Chase then emphasized a declaration of war
as important primarily in international law: "If a general war is declared, its extent and operations are only restricted and regulated by the
jus belli, forming a part of the law of nations; but if a partial war is
waged, its extent and operation depend on our municipal laws." '82 In
adjudicating cases stemming from a limited war, the courts must defer to
Congress' judgment on which laws of war would apply to the conflict,
and which would not. Chief Justice Marshall expressed this principle in
Talbot: "[C]ongress may authorize general hostilities, in which case the
general laws of war apply to our situation; or partial hostilities, in which
case the laws of war, so far as they actually apply to our situation, must
'
be noticed."583
In all three cases, the Court rebuffed arguments that it
should determine whether a state of war existed, or whether Congress
and the President had acted constitutionally in beginning the conflict
with France."' 4 Neither Bas, Talbot, nor Little (nor all three added together) constituted the Marbury of foreign relations law.
578.
579.
Id. art. III, § 2.
See PAUL M. BATOR ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE
FEDERAL SYSTEM 892-95 (3d ed. 1988); WHITE, supranote 414, at 884-926.
580. See Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 19-24 (1801); Bas v. Tingy, 4 U.S. (4 DalI.) 37,
37-38 (1800).
581. Bas, 4 U.S. (4 Dall.) at 43.
582. Id.
583. Talbot, 5 U.S. (ICranch) at 28.
584. To be sure, these decisions contain dicta that could support arguments for exclusive
congressional power over war. Scholars have made the most of Little v. Barreme, the case of an
American naval commander, Captain Little, who had obeyed President Adams' order to seize ships
1996]
THE CONTINUATION OFPOLITICS
CONCLUSIONS
This study has shown that the Framers intended Congress to
participate in war-making by controlling appropriations. Although the
Constitution gives the President the initiative in war by virtue of his
powers over foreign relations and the military, it also forces the
President to seek money and support from Congress at every turn. In
making decisions whether to raise and support the requested forces,
Congress can judge the benefits of a particular war as well as influence
its means and ends. Such was the practice under the British Constitution
and under the early American governments, elements of which provided
models for the drafters of the new federal Constitution. Such was the
explanation given by the supporters of the Constitution to its opponents.
Contrary to the arguments by today's scholars, the Declare War
Clause does not add to Congress' store of war powers at the expense of
the President. Rather, the Clause gives Congress a judicial role in declaring that a state of war exists between the United States and another
nation, which bears significant legal ramifications concerning the rights
and duties of American citizens. Congress' power to declare war also
has the additional effect of ousting the courts from war powers disputes,
because it deprives the courts of the ability to second-guess Congress'
determination of whether a formal state of war exists.
suspected of American ownership, which had sailed from French ports. Unfortunately for Captain
Little, Congress had authorized captures only of American ships sailing to French ports. NonIntercourse Act, ch. 2, § 1, 3 Stat. 613 (1799). The Court, Chief Justice Marshall writing, held Little
liable for damages to the ship-owners because Congress had not authorized seizures of ships sailing
from French ports. See Little v. Barreme, 6 U.S. (2 Cranch) 170, 179 (1804). Critics of modem
presidential war powers have read Little as standing for two propositions: (i) that courts can hear war
powers cases, and (ii) that Congress can regulate the conduct of war even if Congress' regulations
conflict with presidential orders. See, e.g., ELY, supra note 1, at 55; GLENNON, supra note 1, at 3-8;
KOH, supra note 1, at 81-82.
Professors Ely, Koh, and Glennon surely over-read Little. The Court could hear the case
because it involved maritime and prize jurisdiction, which the text of the Constitution grants to the
federal courts. Thus, the case did not really call upon the Court to pass judgment on the exercise of
war powers, and thus did not present a political question. Congress' statute controlled because it set a
"Rules concerning Captures on ... Water," again pursuant to a clear constitutional grant of power.
See U.S. CONsr. art I, sec. 8. The Court did not enjoin enforcement of the President's order, but
instead merely found that Captain Little was personally liable for damages. Little never reached
questions concerning the justiciability of inter-branch war powers disputes, or the President's inherent
authority to order captures going beyond Congress' commands. In fact, Chief Justice Marshall quite
carefully left the issue open:
It is by no means clear that the [P]resident of the United States whose high duty it is to "take
care that the laws be faithfully executed," and who is commander in chief of the armies
and navies of the United States, might not, without any special authority for that purpose, in
the then existing state of things, have empowered the officers commanding the armed
vessels of the United States, to seize and send into port for adjudication, American vessels
which were forfeited by being engaged in this illicit commerce.
Little, 6 U.S. (2 Cranch) at 177.
CALIFORNIA LAW REVIEW
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The Framers also may have believed judicial participation unwarranted because of the structure established in the war powers area. The
potentially conflicting powers of the President and Congress establishes
a system that demanded no constitutionally correct method of waging
war, but instead permits flexible decision-making based on each
branch's exercise of its powers. Aside perhaps from policing against
the most extreme violations of those grants by another branch-such as
if Congress attempted to "fire" the President as Commander in Chiefthe courts have no constitutional standards to apply to a process the
Framers left intentionally undefined. Instead, the Framers understood
that the legislature and the executive would use their powers to defend
the prerogatives of their departments, as well as to pursue their policy
preferences against a recalcitrant coordinate branch. The Framers expected the branches to cooperate to wage a successful war, but also anticipated conflict should the two disagree. They also provided the
means for the government to continue to function in war, so long as the
legislature acquiesced in the actions of the executive.
A. Modem War Revisited
This study suggests that our constitutional system has never needed
a Marbury to govern war powers. Instead, the exercise of war powers
has developed in the realm of politics within the broad constitutional
bounds established by the Framers. In the conflicts of the last halfcentury, ranging from Korea to the Persian Gulf, the President has acted
to protect what he believed to be American national security interests
abroad. Due to the elevated levels of men and material needed, these
wars invariably forced the President to go to Congress before he could
take military action. In each instance, Congress' opportunity to refuse
or suspend funding gave Congress a powerful weapon, which it could
use to pronounce its own policies. Thus, in June 1950, Truman immediately could intervene when South Korea was invaded, but he needed
further appropriations for a longer-term commitment (which he sought
from Congress a month later). 8 Even though Republican leaders criticized the President's unilateral intervention, Congress readily approved
the funding that Truman sought. As Dean Acheson described it later,
"[a]ppropriations and powers tumbled over one another" in the haste
with which Congress acted.586 For Vietnam, Congress voted as early as
May 1965 to appropriate $700 million for the war, added $1.7 billion in
September, and as the war escalated, approved another $4.8 billion in
March 1 9 6 6 .5 '
During these appropriations votes, members of
585.
586.
587.
See ACHESON, supra note 38, at 402-13, 420-22.
Id. at421.
See ELY, supra note 1, at 27-28.
THE CONTINUATION OF POLITICS
1996]
Congress argued about the wisdom of the war and one even attempted,
without success, to prevent the use of American draftees in Southeast
Asia.5 1
And during the early stages of Operation Desert Shield,
Congress approved $978 million to support the American troop deployment 9 Congressional resistance to war at these points would have
ended any presidential war efforts, because the President cannot veto a
refusal to pass an appropriations bill. All Congress had to do was
nothing.
Recent events further confirm that Congress fully understands that
its appropriations power may be used to check executive military operations. Beginning in 1993, President Clinton authorized steadily increasing uses of American military force in the former Yugoslavia
pursuant to United Nations Security Council resolutions. In April 1993,
U.S. planes began to enforce the United Nations ban on military flights
over Bosnia and Hercegovina. In June 1993, President Clinton sent 300
troops to participate in a U.N. peacekeeping force in Macedonia. In
February 1994, sixty U.S. aircraft were made available to help the U.N.
end the Bosnian conflict; from March through November, these planes
shot down Serbian aircraft and bombed Serbian military positions. In
December 1995, President Clinton ordered the deployment of 20,000
American troops to Bosnia to implement a peace agreement signed by
Serbia, Bosnia, and Croatia.59°
Like President Bush during the Persian Gulf War, President Clinton
did not ask Congress for authorizing legislation or for a declaration of
war. Instead, President Clinton declared that he had "directed the participation of U.S. forces in these operations pursuant to my constitutional authority to conduct the foreign relations of the United States and
59
as Commander in Chief and Chief Executive.""
As he put it in his
message to Congress concerning his decision to send American troops
to Bosnia, President Clinton requested only "an expression of support
from the Congress." 5" President Clinton maintained that he had the
unilateral authority to send the military to Bosnia, whether Congress
gave its approval or not.
Congress fully deliberated President Clinton's decision to expand
American military intervention in Bosnia. Even before he requested a
588.
Id at 28.
589. Tom Kenworthy, Despite Veto Threat, House Cuts Favored Defense Programs, WASH.
PosT, Sept. 20, 1990, at A6. Congress refused, however, the Bush administration's request for
control over the allied contributions for the operation, stipulating that such funds cannot be spent
except as authorized by Congress. Id.
590. William Drozdiak & John F. Harris, Leaders Sign Pact to End Bosnia War; Clinton Urges
People of Battered Country to "Seize This Chance," WASH. PosT, Dec. 15, 1995, at Al.
591. Letter to Congressional Leaders on Bosnia, 31 WEEKLY COMP. PRas. Doc. 2144, 2145
(Dec. 6, 1995).
592. Id.
CALIFORIA LAW REVIEW
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congressional expression of support, President Clinton already had received funding for the Bosnia operation in the 1996 Defense Department appropriations bill. During budget negotiations between the White
House and congressional leaders in November 1995, President Clinton
agreed to sign the $243 billion appropriations bill, in exchange for congressional agreement that $1.5 billion would be used to fund the 20,000
troops being sent to Bosnia.593 If Congress had chosen to oppose the
intervention, it easily could have refused to add the $1.5 billion, or it
could have refused to fund all Pentagon operations overseas. Instead,
Congress passed the funds to allow the executive to conduct its war
plans.
Further debate over the wisdom of the Bosnia operation included
efforts to eliminate funding for the troops. A bill to do just that passed
the House of Representatives.5 94 House Resolution 2606, introduced by
Representative Hefley, prohibited any use of Defense Department funds
for deployment of American armed forces on the ground in Bosnia as
part of the NATO implementation force. After debate concerning
whether to support the Bosnia intervention, the Senate rejected H.R.
2606 by a vote of 22 to 77,595 and instead passed a resolution, by a vote
of 69 to 30, supporting the mission. Disagreeing with the Senate, the
House passed a resolution opposing President Clinton's policy, but supporting the troops. 96
Thus, the appropriations power provided Congress with ample
opportunity to weigh in on the decision to send troops to Bosnia.
Congress had the clear opportunity to stop the mission by refusing to
include funding for it in the Defense Department appropriations bill. It
did not. The House then passed a funding ban, but the Senate
demurred.
In the course of considering the appropriations ban,
Congress had the full opportunity to debate the merits of the President's
military decision, and could have used its appropriations power to enforce its own judgment on the wisdom of sending the troops. By providing long-term funding for such military operations, Congress had
given the executive the means to send the troops overseas. By refusing
to cut those funds off, Congress chose to permit the executive to pursue
war. The Senate's resolution only provided further endorsement of
President Clinton's actions.
A critic could respond to these examples in two ways. First, one
could claim that Congress cannot consider war issues responsibly when
593. John F. Harris & Eric Pianin, Clinton Accepts Hill's Defense Spending Bill, WASH. POST,
Dec. 1, 1995, at Al, A6.
594. H.R. 2606, 103d Cong., 2d Sess. (1995).
595. 141 Cong. Rec. S18470 (Dec. 13, 1995).
596. Katharine Q. Seelye, Anguished, Senators Vote to Support Bosnia Mission; Clinton Off to
ParisSigning, N.Y. TImEs, Dec. 14, 1995, at Al, A14.
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THE CONTINUATION OFPOLITICS
voting on appropriations, because members of Congress will not risk
creating the impression that they are leaving American troops at the
front defenseless. 5" Although one might feel some disappointment at
Congress' failure to take advantage of its funding powers, a failure of
political will should not be confused with a constitutional defect. A
congressional decision not to exercise its constitutional prerogatives
does not translate into an executive branch violation of the Constitution.
Certainly congressional timidity cannot justify rearranging the Constitution-either to restrict the President's war-making powers, or to push
the federal courts into political question cases-without a constitutional
amendment.
Second, skeptics could claim that the appropriations check cannot
prevent small-scale military interventions using existing funds. The
original understanding cannot control because the Framers could not
anticipate the existence of a large peacetime military that would allow
the President to make war without immediate appropriations. Because
the Framers thought that the President always had to seek congressional
funding first, the argument continues, they intended to give Congress a
de facto veto power over executive branch war decisions. Thus, we must
require congressional approval before any hostilities to restore
If neither
Congress' power to approve wars before they begin.
Congress nor the President will act to revive the legislature's proper role,
then the courts must step in to restore the balance. As Ely puts it, we
must seek "judicial 'remand' as a corrective for legislative evasion."59
This is a more compelling critique than the first, because it hinges
on the idea that modem conditions have made the precise intent of the
Constitution difficult to implement. However, we need not reach the
question of whether changed conditions require today's constitutional
interpreters to translate the Framers' principles into a modem context.599
The Framers' intent on war powers, as demonstrated in this Article, quite
readily takes root in modem soil-without the need for a creative transplant. Anticipating the arguments of today, the Antifederalists claimed
that the President would abuse his commander-in-chief powers once in
control of a standing army. As we have seen, the typical Federalist response was: "Congress, who had the power of raising armies, could
certainly prevent any abuse of that authority in the President-that they
alone had the means of supporting armies, and that the President was
597. Scholars, such as Ely and Koh, have sought clever ways around "congressional
acquiescence" to "[i]nduce] Congress to [d]o [i]ts []ob." ELY, supra note 1, at 47-67; KOH, supra
note 1, at 123-33, 185-207.
598.
ELY, supra note 1,at 54.
599. See Lessig & Sunstein, supra note 15, at 119 (citing changed circumstances as additional
support for an argument against the concept of a strong unitary executive).
CALIFORNIA LAW REVIEW
[Vol. 84:167
impeachable if he in any manner abused his trust."'
Such exchanges
assumed that the President already possessed a standing military, and
that Congress' sole remedy was a termination of funds, or impeachment
if the President illegally used funds that Congress had allocated to other
accounts.
The original constitutional design needs no modification to operate
in the modem world. Nothing prevents Congress today from eliminating the funds for operations in Grenada, Lebanon, the Persian Gulf in
1987, or Panama. Nothing prevented Congress from prohibiting the
expenditure of funds on any military operation. The Federalists realized that permitting the federal government to establish a standing army
created the possibility of executive action without preceding congressional approval. Antifederalist arguments made them aware that the
President could use the army not just for foreign adventures, but for
domestic ones as well. But, the Framers decided that the risk brought by
peacetime military forces was outweighed by the benefits of quick military action.
A final element of current war powers practice, judicial abstention,
can seek hearty approval from the original understanding. An initial review of Supreme Court and lower federal court decisions demonstrated
judicial reluctance to hear war powers cases. 60' During the Vietnam War,
for example, the Supreme Court refused to grant certiorari in war
powers cases, while the circuit courts regularly employed the muchmaligned political question doctrine to abstain from war controversies.
Scholars have criticized judicial reliance on the political question
doctrine, but this study suggests that there is more meat to the matter.
The courts cannot act in war powers cases because the Constitution
allocates all power in the area to the political branches. The courts
cannot issue a declaratory judgment concerning undeclared wars, as
current scholars would have them do, because the Constitution vests this
judicial-like power to declare war exclusively in Congress. There is no
need for courts to police the balance of powers between President and
Congress, because the Framers intended to establish a self-regulating
system wherein the executive and legislative branches would monitor
and control each other. Put into terms of current case law, war powers
cases implicate the constitutional core of the political question doctrine,
rather than its prudential emanations, because they "involve the exercise
of a discretion demonstrably committed to the executive or legislature."'
There are no "judicially discoverable and manageable stan600. 4 ELLIOT, supra note 119, at 114 (statement of Richard Spaight at North Carolina ratifying
convention).
601. See supratext accompanying notes 70-104.
602. Baker v. Carr, 369 U.S. 186, 211 (1962).
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THE CONTINUATION OFPOLITICS
dards" 3 for resolving these cases because the Framers quite consciously designed war powers to have no fixed rules of conduct or
process. Thus, during the Persian Gulf war, it was Dellums v. Bush6
which pushed judicial competence beyond its proper bounds by declaring that the President was violating the Constitution. And it was the
less-touted Ange v. Bush which correctly concluded that the federal
courts should not exercise jurisdiction in such cases because "Congress
possesses ample powers under the Constitution to prevent Presidential
'6 5
over-reaching, should Congress choose to exercise them." 1
But, as the refrain of some scholars goes, Youngstown Sheet &
Tube Co. v. Sawyeir stands for judicial competence in war and foreign
affairs. However, one can read Youngstown to support the vision of the
Court's role as sketched by this study. As we have recognized, the
Framers did not expect to exclude all cases touching on war, only those
that challenged the constitutional authorities of the Congress and the
President. Youngstown essentially called upon the Court to decide if
war existed, and if that condition of war permitted the President to act
domestically in a way he could not during peacetime. Quite properly,
the Court concluded that a total state of war did not exist because
Congress had not issued a declaration of war, much in the same way that
the early Marshall Court had looked to Congress' actions to determine
the legal nature of the Quasi-War. The Court in Youngstown recognized
that Congress alone had the authority to decide if a legal state of war
existed which justified the seizure of the steel mills by the federal
government. And, as we have seen, such a declaration was important
primarily for its domestic effects, whether it be for notifying the People
of their new enemy, or the authorization for the exercise of emergency
powers by the federal government. Thus, Youngstown correctly held
that the President could not usurp Congress' domestic authority to decide whether the nation was in a legal state of war. However, to the extent that Youngstown might stand for the proposition that courts can
603. Id. at 217.
604. 752 F. Supp. 1141, 1146 (D.D.C. 1990).
605. 752 F. Supp. 509, 514 (D.D.C. 1990). As Judge Richey further noted in declining to
exercise jurisdiction:
If Congress considers the President's current deployment of forces in the Persian Gulf to
violate the Constitution, or if Congress considers the country on the verge of being
unconstitutionally brought to war, or if Congress concludes at any time that the President's
actions in the Gulf have usurped Congress' constitutional role, Congress has many options to
check the President. Congress can itself declare war, exercise its appropriations power to
prevent further offensive and/or defensive military action in the Persian Gulf, or even
impeach the President.
Id.
606.
343 U.S. 579 (1952).
CALIFORNIA LAW REVIEW
(Vol. 84:167
enjoin any presidential action that conflicts with Congress, as suggested
in Justice Jackson's concurrence,' the decision went too far.
B. War and Republicanism
Rather than setting war and foreign affairs above the Constitution,
these war power principles fulfill the aims of republican government.
As Gordon Wood's recent work, The Radicalism of the American
Revolution, has shown, the Constitution represented a reaction by the
young leaders of the Revolution against the rampant, unchecked democracy that had swamped the state governments and had permitted
interest groups to pass legislation to further their private interests.S1
Madison's The FederalistNo. 10 "was only the most famous and frank
acknowledgment of the degree to which private interests of various sorts
had come to dominate American politics."'
Still clinging to the
promise of republicanism before the onset of pure democracy, the
Framers designed the Constitution to check legislative excess and the
instrumental use of government merely to implement private interests. 10
However, this presented the Framers with something of a paradox, because while they remained suspicious of interest group politics, they also
realized that all power and legitimacy in government flowed from
popular sovereignty. 1'
Perhaps more successfully than in its other areas, the Constitution's
war and foreign affairs provisions struggled to solve this dilemma. The
Framers attempted to recognize the ultimate authority of the People by
creating checks on the powers of its agent-the federal government. 12
In a break from British political thought, the Americans posited that the
government did not equal the sovereign, that the People were the only
true authority, and that the government was merely the agent for exercising the power delegated by the People. Once they had broken the
identity between government and sovereignty, the Framers could prevent the legislature from concentrating all powers in its hands, primarily
by creating an independent executive that represented the will of the
People as well as, or better than, Congress. In their competition to best
effectuate the People's wishes, the branches would check each other in
the hopes of winning popular acclaim and re-election. "Ambition must
be made to counteract ambition," wrote Madison in The FederalistNo.
607.
See id.
at 635-38, 654-55 (Jackson, J.,
concurring).
608.
See WooD, supranote 415, at 253-55.
609.
Id. at 253.
610.
Id. at 253-70. This historical insight has spurred the recent interest in republicanism for
constitutional interpretation. See generally Frank Michelman, Law's Republic, 97 YALE L., 1493
(1988); Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988).
611. See generally Akhil R. Amar, OfSovereignty and Federalism,96 YALE L.J. 1425 (1987).
612. Id. at 1441-44.
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THE CONTINUATION OFPOLITICS
5I.613 In order to harness the interest of government officials for the
public good, Madison concluded, each branch had to possess "the necessary constitutional means, and personal motives, to resist encroachments of the others. 61 4 Thus, in the war powers context, the Framers
did not rest the sovereign power of making war in one department, but
divided it between the executive and legislature and gave each branch
the means to check the other's designs. The President could not wage
war without funds; Congress could not initiate hostilities without a
Commander in Chief.
Preventing the government from straying too far from the People's
will, however, exacerbated the problem of interest group politics. If the
leaders of the federal government strove to reflect accurately a popular
will consumed with private interests, then republicanism's efforts to secure the common good surely would fail. Several of the Framers expressed fears that the federal government might engage in war or peace
for sectional purposes.6 5 Others believed that classical history displayed
a wild tendency by pure democracies toward war.61 6 It was to prevent
the use of war for private interests that led the Framers to vest substantial
war-making authority in an independent President. The Framers expected private interests to come forth in the legislature, against whose
ambitions, Madison warned, "the people ought to indulge all their jealousy and exhaust all their precautions. '"617 In response to these fears,
the Framers expected the President to act as "the general Guardian of
the National interests" by representing the country as a whole, rather
than a particular section or interest.68 The proper incentives would arise
in part from the President's electoral base. Wrote Wilson, "Being
elected by the different parts 6f the United States, he will consider himself as not particularly interested for any one of them, but will watch
over the whole with paternal care and affection. ' 61 9 Not only would the
President have the moral force of national election behind him, but the
People would gain the benefit of enhanced government accountability.
As Hamilton noted in The FederalistNo. 70, concentrating such power
613.
THE FEDERALLST No. 51, supra note 304, at 349 (James Madison).
614.
Id.
615. Thus, Southerners might fear that a New Englander-dominated government might sacrifice
navigation rights on the Mississippi for a favorable alliance with Great Britain. This fear explains
some of the violent opposition to the Jay Treaty reached with Great Britain. See
DECONDE,
supra
note 559, at 101-40. Similary, New Englanders opposed the war against the Northwest Indians
because it seemed to pursue Southern hopes for westward expansion at a high price.
616. In the words of Justice Story: "Indeed, the history of republics has but too fatally proved,
that they are too ambitious of military fame and conquest, and too easily devoted to the views of
demagogues, who flatter their pride, and betray their interests." 2 STORY, supranote 378, § 1171.
617. THm FEDERALIST No. 48, supranote 304, at 334 (James Madison).
618. 2 FARRAND, supra note 357, at 540-41 (Gouverneur Morris).
619. 2 ELLIOT, supra note 119, at 448.
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[V/ol. 84:167
in a single man would give the People "the two greatest securities they
can have for the faithful exercise of any delegated power": first, "the
restraints of public opinion," and second, "the opportunity of discovering with facility and clearness the misconduct of the persons they
trust."62 °
As head of the executive branch, the President's institutional superiority would allow him to act quickly in the national interest. Headed
by a single official, the executive branch would have access to more information and advice, and could act swiftly and with decisiveness. As
Publius told the voters of New York: "Decision, activity, secrecy, and
dispatch will generally characterise the proceedings of one man, in a
much more eminent degree, than the proceedings of any greater number ..... ."62 As a representative of the People, the President could resist
interest group pressures, and as one person he could override those interests to secure the common good. If a faction-riven Congress impeded a military effort, the President could act first and then seek
approval directly from the People based on his greater responsibilities
and abilities.'
Besides the values of accountability and responsibility that adhered
to a unitary executive, the President's energy and independence in war
carried the additional virtue of enhancing republican decision making.
As protector of the national interests, the President not only could wage
war when a myopic Congress opposes it, but he also could prevent
Congress from pushing the country into war too hastily. "In the legislature, promptitude of decision is oftener an evil than a benefit," wrote
Hamilton."z By slowing down congressional action, either by not waging hostilities or by vetoing bills, the President could force greater deliberation and caution by Congress and the nation before it decided on
war.624 According to Hamilton, "[t]he differences of opinion, and the
jarrings of parties in [the legislature], though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection;
6 as President
and serve to check excesses in the majority.""
Adams's conduct during the Quasi-War bears out this aspect of the presidency, for he
was able to restrain his own party from plunging the nation into a fullscale war with France. Although vilified by both Federalists and
Jeffersonians for his middle ground, Adams surely acted in the best
620. THE FEDERALIST No.70,supranote 304, at 477-78 (Alexander Hamilton).
621. Id. at 472.
622. Cf.Jerry L. Mashaw, Prodelegation:Why AdministratorsShould Make PoliticalDecisions,
1 J.L. ECON. & ORG. 81 (1985).
623.
THE FEDERALIST
No. 70, supranote 304, at 475 (Alexander Hamilton).
624. Encouraging deliberation in all levels of government also has become one of the primary
goals of modem republicanism. See Sunstein, supra note 610, at 1548-51.
625. THE FEDERALIST No. 70, supra note 304, at 475 (Alexander Hamilton).
1996]
THE CONTINUATION OFPOLITICS
interests of the nation by countering French attacks on American
shipping without embroiling the nation more deeply in the European
wars. Adams' tale serves as a powerful example of the duty of the
President, and the political price he can pay for pursuing the national
interest.
A President sometimes must chart a risky course toward war because the Constitution places him squarely at the tiller. He is not alone;
the Congress is at his side, either funding his decisions or frustrating
them. This cooperative, and yet competitive, relationship has produced
many different wars, and many different ways of going to war, in
American history. It is perhaps ironic that as the United States today
turns to its military more often in international affairs, the historical
roots of war powers are so little understood by academia, or so ambiguously defined by the courts. The recent examples of presidential warmaking and congressional inaction do not violate the Constitution, nor
should they cause the confusion they appear to. Instead, the elasticity
of the war power process has resulted directly from the Framers' conscious design. They established an arena with wide markers to permit
the executive and legislative branches to work in harmony, or to struggle for primacy, over issues of war.
As shown in Panama, Kuwait, Somalia, Haiti, and Bosnia, the end of
the Cold War has not produced a relaxation in the need for American
military force abroad. The approach of a new millennium does not
seem to bring the prospects of a millennial peace any closer, either to
the world or to the President and the Congress. Indeed the continuing
struggle between the branches over the powers of war is only the fulfillment of the Framers' design and in the best interests of the People.